LATHE COMISIÓN INTERNATIONAL INTERNACIONAL COMMISSION CONTRAAGAINST LAIMPUNITY IMPUNIDAD IN GUATEMALA EN GUATEMALA WOLA UNA ESTUDIOWOLA REPORT DE INVESTIGACIÓN ON THE CICIG DE WOLA EXPERIENCE SOBRE LA EXPERIENCIA DE LA CICIG

THELA CICIG: CICIG: UNAN INNOVATIVEINSTRUMENTO INSTRUMENT INNOVADOR FOR CONTRA FIGHTING REDES CRIMINAL INFORMEREPORT ORGANIZATIONSCRIMINALES Y PARA AND STRENGTHENINGEL FORTALECIMIENTO THE RULE DEL OFESTADO LAW DE DERECHO 6/2015 3/2015 THEOFICINA WASHINGTON EN WASHINGTON OFFICE PARAON LATIN ASUNTOS AMERICA LATINOAMERICANOS KEY FINDINGS: s #2)-).!,!.$0!2!,,%,0/7%2.%47/2+3(!6%2//43).4(%).4%,,)'%.#%!.$0!2!-),)4!29 FORCES THAT OPERATED DURING THE 1960-1996 ARMED CONFLICT. The Guatemalan state did not dismantle these counterinsurgency forces after the 1996 peace accords, allowing for their evolution into organized crime and organized corruption. These transformed entities co-opted state institutions to operate with impunity and achieve their illicit goals. They continue to threaten Guatemalan governability and rule of law. s 4(%).&,5%.#%/&),,%'!,.%47/2+37)4().4(%34!4%!00!2!453)3./4!0(%./-%./. UNIQUE TO GUATEMALA. These parallel structures of repression have morphed into organized crime groups in many countries that have endured armed conflicts. s 4(%).4%2.!4)/.!,#/--)33)/.!'!).34)-05.)49).'5!4%-!,!LA COMISIÓN INTERNACIONAL CONTRA LA IMPUNIDAD EN GUATEMALA, CICIG) IS A UNIQUE MODEL OF COOPERATION FOR 342%.'4(%.).'4(%25,%/&,!7 In contrast to other international mechanisms, the CICIG is an independent investigative entity that operates under Guatemalan law and works alongside the Guatemalan justice system. As a result, it works hand in hand with the country’s judiciary and security institutions, building their capacities in the process. s ).)43.%!2,9%)'(49%!23/&%8)34%.#% 4(%#)#)'(!3!#()%6%$42!.3#%.$%.4!,2%35,43 The CICIG has passed and implemented important legislative reforms; provided fundamental tools for the investigation and prosecution of organized crime that the country had previously lacked; and removed public officials that had been colluding with criminal and corrupt organizations. Through emblematic cases, the Commission has demonstrated that with the necessary political and technical support, the Guatemalan justice system can investigate complex cases and bring to justice actors once considered untouchable. s 4(%0/,)4)#!,7),,/&4(%#)#)'3#/5.4%20!243(!3./4"%%.5.)&/2-/6%24(%9%!23 Because the CICIG works hand in hand with the Guatemalan government, its success or failure depends on the political will of the leadership of its counterpart institutions: the Public Prosecutor’s Office (Ministerio Público, MP), the National Civilian Police (Policía Nacional Civil, PNC), the judiciary, and the legislature. s 4(%#)#)')3!.)../6!4)6%3934%-&/2342%.'(4%.).'4(%25,%/&,!74(!4/4(%2 COUNTRIES IN SIMILAR SITUATIONS SHOULD CONSIDER AS A MODEL. WOLA believes that the governability problems in Honduras and El Salvador, including the high rates of violence and the shortcomings of their justice and security systems, underscore the importance of considering similar mechanisms for these countries. s 4(%'/6%2.-%.4/&'5!4%-!,!3(/5,$&!#),)4!4%4(%#/.$)4)/.3&/24(%%&&%#4)6% &5,&),,-%.4/&4(%#)#)'3-!.$!4%WOLA applauds the recent decision of the Guatemalan President to extend the mandate of the Commission. Despite the CICIG’s significant progress, there is still much work to be done to dismantle criminal and parallel power structures and to consolidate the justice system. As the Commission has made progress in its investigations and prosecution of emblematic cases, these networks and their allies have sought to regain lost ground to guarantee their impunity and to counteract the CICIG’s work. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 3

INTRODUCTION women and children. Te situation constitutes a true Many countries around the world sufer from weak humanitarian emergency.2 or failed judiciary and security institutions. In the best of cases, these institutions function but are weak In contrast to previous eras, the current violence is and overpowered by external forces. In other cases, not associated with an ideological confrontation, but the institutions exist as government formalities but rather the continued prevalence of the same causes that do not function whatsoever. Tis tends to happen in instigated the internal conficts years ago, including societies in transition from an authoritarian regime to extreme poverty, inequality, and social exclusion. In fact, a democratic one or from confict to post-confict, as it appears that the use of ideology is merely a tactic to well as in those in which corruption and/or organized preserve the status quo. Tis, combined with common crime have a substantial and infuential presence (or and organized crime, endemic levels of corruption and in some combination of the above). In these societies, impunity, and a lack of access to justice, has exacerbated the weakness of the state is commonly preceded or the governments’ inability to attend to its citizens’ basic accompanied by a hijacking or infltration of the demands. It has also made it impossible to develop solid, institutions by parallel power structures that render the transparent, and trustworthy democratic institutions that institutions dysfunctional or inoperative. Tese structures are responsible and at the service of its citizens.3 may be civil, military, intelligence, public, or private; they may stem from a previous armed confict, or not; or may Te international community has been experimenting have connections to local or transnational crime. with diferent mechanisms and tools to help governments and societies overcome these kinds of problems. Tese Te political ability and will of the authorities to modify mechanisms have included everything from traditional this status quo is ofen lacking in these states. Tese technical assistance (focused on providing training and defciencies make the justice and security institutions equipment to strengthen institutions), to the creation of unable to ensure that citizens can efectively enjoy international or mixed criminal tribunals, or in particular their fundamental rights or fnd peaceful means of cases, the establishment of investigation committees. using the law to resolve controversies. As a result, these Several diferent models have been tried with varying controversies are resolved with violence and corruption, degrees of results. Since September 2007, one of these producing a vicious cycle. While this can make confict mechanisms has been operating in Guatemala. Te endemic or, in some cases, transform it, it cannot end it, International Commission against Impunity in Guatemala thereby impeding peaceful coexistence in these societies. (La Comisión Internacional contra la Impunidad en Guatemala), or CICIG, is a sui generis hybrid initiative Central America is a good example of a region in which to strengthen the rule of law. It was established with weak justice and security institutions, along with their the support of the United Nations, at the request of the corruption by criminal entities and politicians, have Guatemalan government, to help domestic institutions rendered the state unable to respond to violence or investigate and dismantle illegal groups and clandestine crime, or address the structural factors behind them. security structures (cuerpos ilegales y aparatos clandestinos Te armed conficts that raged across the region during de seguridad, CIACS). Tese groups were formed as part the Cold War ofcially ended two decades ago, but of the counterinsurgency apparatus during the 1960- the violence continues. Honduras, El Salvador, and 1996 armed confict. Because they were not dismantled Guatemala (the so-called Central American Northern afer the peace accords, they transformed into a highly Triangle) form the most violent sub-region in the world. sophisticated and complex criminal phenomenon that has In 2012, the homicide rate in Honduras was 90 murders co-opted democratic institutions to reconfgure the power per 100,000 residents, 40 in Guatemala, and 41 in El structure within the state.4 Salvador. In comparison, the rate that same year was 6.5 in Afghanistan, 8.0 in Iraq, 21.5 in Mexico, 25.2 Te fusion or transmutation of ofcial or quasi-ofcial in Brazil, 28.3 in the Democratic Republic of Congo, intelligence and security structures into criminal 30.8 in Colombia, and 31.0 in South Africa.1 According networks is a complex but little understood phenomenon. to statistics from the United Nations, 40 percent of In the absence of any control, these structures use their the victims of violence in the Northern Triangle are political, military, and intelligence connections, along 4 The International Commission against Impunity in Guatemala

with corruption and violence, to manipulate the system. In the investigation, WOLA attributed the majority of Teir actions enable them to subvert the operation of these violent acts to members of illegal armed groups, legitimate state institutions to evade responsibility for also known as clandestine groups, which act at the behest their crimes and to guarantee that they can continue to of hidden powers in the country. Te study revealed operate freely. In doing so, they weaken the rule of law how these groups, acting in informal and amorphous and erode respect for human rights. networks, used their positions and connections in private and public spheres to enrich themselves with illicit Te CICIG’s mandate is unique among these kinds activities, sometimes related to state resources (corrupting of rule of law mechanisms. In addition to the more customs ofcials, corruption in lucrative public contracts, traditional forms of cooperation and technical assistance, and bribery). At the same time, the report described how the Commission was endowed with the ability to bring these groups sought to manipulate and co-opt the justice criminal charges as a complementary prosecutor in and security systems to control them and guarantee their Guatemalan courts.5 In addition, it has the power impunity. to propose public policies, including judicial and institutional reforms aimed at eradicating the CIACS. Te study identifed the armed confict as these groups’ It also has the power to request disciplinary procedures point of origin. Far from disappearing with the signing of against any public ofcial that fails to cooperate or the 1996 peace accords, these groups continued to operate obstructs the CICIG’s work. In sum, it is an international in post-confict Guatemalan society. organization established to investigate and support the prosecution and dismantling of criminal networks under At the same time, the study warned that the activities of Guatemalan legislation and within Guatemala’s justice these groups were undermining the justice system and system, whose goal is to build capacity in local state perpetuating a climate of insecurity, propagating violence, institutions. corruption, and organized crime. Te report also detailed the infuence of these clandestine groups on state actors Te current report aims to analyze Guatemala’s experience and their ability to infltrate government institutions. It with the CICIG over the past eight years, including its documented the efects on the competence of Guatemalan advantages, challenges, and principal achievements. It authorities to efectively investigate and dismantle seeks to examine this hybrid model of an international the groups and how this was producing a serious organization investigating and prosecuting crimes deterioration of state institutions and the rule of law. within the national justice system of a particular state to identify the principal lessons learned from this innovative Te report noted the concern of a diverse group of actors experiment in strengthening the rule of law. At the same from civil society and the international community, and time, it seeks to ofer recommendations to ensure that concluded by exhorting the Guatemalan government and the Commission’s mandate is fulflled. Lastly, it makes the international community to support the creation of an suggestions for a future application of the model in other international commission to investigate the clandestine countries confronting similar governability problems and groups. justice and security systems failures. For civil society groups in Guatemala, it was clear that the government lacked the ability to carry out an efective BACKGROUND ON THE CREATION OF investigation and criminal prosecution of these groups THE CICIG precisely because of the level of infuence and control they In the early 2000s Guatemala faced escalating problems exerted within government institutions. What was needed of governability and violence, particularly an increase in was an international and independent entity with the threats and violent attacks against certain sectors of civil ability to work alongside local government actors. society and their leaders. Local human rights leaders in Guatemala asked WOLA to document the very issues Tis proposal, originally put forth by members of that would subsequently bring about the creation of the Guatemala’s civil society groups, took shape in January CICIG. Te result was the 2003 investigation, Hidden 2004 with the signing of an agreement between the Powers in Post Confict Guatemala.6 United Nations and the Guatemalan government to create 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 5

the Commission for the Investigation of Illegal Groups de las Naciones Unidas en Guatemala, MINUGUA).13 Yet, and Clandestine Security Organizations (Comisión de in spite of identifying the matter as highly important, Investigación de Cuerpos Ilegales y Aparatos Clandestinos these groups were never dismantled. de Seguridad, CICIACS).7 Some formal changes were made, however. Te Civil Self CICIACS, however, never came to fruition. Months afer Defense Patrols (Patrullas de Autodefensa Civil, PAC)— the agreement was signed, the Guatemalan constitutional paramilitary forces established during the war to help the court ruled that the accord violated the constitution by Guatemalan army in its counterinsurgency eforts—were endowing an international entity with powers of criminal demobilized and its members subsequently recognized prosecution that Guatemalan law reserves for the Public as ex-combatants and compensated for their service. Te Prosecutor’s Ofce.8 Presidential General Staf (Estado Mayor Presidencial, EMP), an entity established to provide protection, Nevertheless, civil society groups sustained their pressure logistical support, and counsel to the president and that as the violence continued. Te administration of President simultaneously served as a center for military intelligence Óscar Berger (2004-2008) renewed the negotiations with and undercover activities, was replaced in 2003 by the the UN,9 which ended on December 12, 2006 with the Secretariat for Administrative Matters and Security “Agreement to Establish the International Commission (Secretaría de Asuntos Administrativos y de Seguridad, against Impunity in Guatemala, CICIG” (Acuerdo Relativo SAAS). Military Intelligence, another agency deeply al Establecimiento de una Comisión Internacional Contra involved in counterinsurgency actions and numerous la Impunidad en Guatemala).10 Guatemala’s congress human rights violations, remained in place, but many of ratifed the agreement in August 2007, and it went into its functions were formally assigned to the newly formed efect in September 2007. civilian intelligence agency called the Secretariat for Strategic Analysis (Secretaría de Análisis Estratégico, SAE). Evolution of Illegal Groups and Clandestine Security Structures Despite these formal changes in the years afer the signing In March 1994, in the midst of the civil war, the of the peace accords, the clandestine organizations Guatemalan government and the Guatemalan National continued to exist.14 Tey transformed into groups that, Revolutionary Unity (Unidad Revolucionaria Nacional depending on the administration in power and on which Guatemalteca, URNG) signed the “Comprehensive party held the majority in congress, were either visible and Agreement on Human Rights” (Acuerdo Global sobre ostentatious or in stand-by mode. 15 Invariably, however, Derechos Humanos). On December 29, 1996, the they became increasingly dedicated to criminal activities. “Agreement on a Firm and Lasting Peace” (Acuerdo de What started as common and petty crimes soon became Paz Firme y Duradera) brought to an end three decades organized criminal activity, including drug trafcking; of internal armed confict. During the confict, 45,000 trafcking of persons; contraband of arms, alcohol, and people were disappeared and 200,000 more were killed, fuel; and money laundering.16 By the beginning of the new most of whom were civilian Maya.11 century, Guatemala had been reorganized, as Amnesty International described it in 2002, into a “corporate mafa Te Comprehensive Agreement of 1994 committed the state” built on an alliance between traditional sectors of Guatemalan government to the dismantling of the illegal the oligarchy, new entrepreneurs, police and military groups and clandestine security structures (CIACS).12 ofcials, and common criminals.17 Some of these groups were established during the armed confict as part of the state’s repressive counterinsurgency Permissive or even colluding authorities support these apparatus. Others arose as private entities set up by elite informal and renewed organizations, as they are mostly members of society to eliminate political opponents and made up of members and ex-members of the military defend the status quo, while yet others were made up of and the police. But they have also broadened their a combination of public and private sector elements. Te membership and infuence into civil society, business breakup of these groups was so vital, it was an issue of circles, academia, political circles, media, and state constant concern in the reports from the United Nations institutions, particularly the judiciary and security Verifcation Mission in Guatemala (Misión de Verifcación agencies. 6 The International Commission against Impunity in Guatemala

Over the years, these networks have co-opted nearly all spaces of state power to use the institutions for their own interests and foment and cover up their illicit activities. They use their connections with political figures and influential individuals, as well as corruption, intimidation, and violence to protect their lucrative, illegal enterprises and ensure impunity for their aims.

According to a prominent Guatemalan think tank, Te Some criminal networks, on the other hand, have Association for Research and Social Studies (Asociación originated within the state itself. Tis is the case in de Investigación y Estudios Sociales, ASIES), it is clear that many post-confict societies, wherein illegal armed illegal organizations and clandestine structures, which groups, paramilitary forces, and clandestine security originated as fundamental instruments for repression structures—established as part of counterinsurgency during the internal armed confict, policies—have transformed into criminal networks or merged with outside criminal groups as a way of [h]ave transformed and adapted to the current adapting to changing circumstances. Tis is the case in circumstances. Tey have converted themselves into El Salvador, where the Joint Group for the Investigation a sophisticated machinery at the service of organized of Illegal Armed Groups with Political Motivation in crime. Tey debilitate the state by fomenting corruption El Salvador (Grupo Conjunto para la Investigación de at every level and taking advantage of political Grupos Ilegales con Motivación Política en El Salvador), institutions and their funds to generate immense wealth an entity created at the end of 1993 by the Salvadoran with complete impunity.18 government and the United Nations, determined that Over the years, these networks have co-opted nearly all changes in the country’s internal dynamics had forced spaces of state power to use the institutions for their own the death squads to undergo a process of “mutation interests and foment and cover up their illicit activities.19 and atomization,” morphing into more decentralized Tey use their connections with political fgures and organized criminal structures both at regional and infuential individuals, as well as corruption, intimidation, national levels.21 and violence to protect their lucrative, illegal enterprises and ensure impunity for their aims. One variation on this pattern can be seen in Colombia where some demobilized paramilitary groups shifed Tis problem is not unique to Guatemala. In all of Latin into organized crime. Te paramilitary forces were not America, illicit networks exercise a high level of infuence a direct creation of the state. Rather, they emerged from over the state.20 Tis infuence is exercised through the small self-defense groups established by powerful diferent types of relationships with the state apparatus. business and landowner elites and from the death squads created by drug trafckers. Even though the paramilitary Some criminal networks have managed to penetrate groups did not emerge from a state-sponsored deeply into state institutions. Drug trafckers have done counterinsurgency strategy, sectors of the state tolerated this in many countries in the region, as have kidnapping and even cooperated with them.22 and extortion groups and other large criminal enterprises. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 7

"92/.,)-!/,)6!

After graduating in 1987 as an ofcial in the 108th class of the Army’s Polytechnic School (Escuela

Politécnica), Byron Lima Oliva entered the “Kaibil” PLAZA PÚBLICA PHOTO: school that trained the army’s elite counter- insurgency forces. He later graduated from the School of Intelligence at the Military High Command (Escuela Captain Byron Lima Oliva, alleged leader of a corruption ring de Inteligencia del Estado Mayor de la Defensa Nacional) within the penitentiary system. and went on to form part of former President Álvaro Arzu’s security detail. 23 Three years later, in 2013, Lima Oliva was captured a few miles outside of prison. According to Minister of In June 2001, Captain Byron Lima Oliva, his father, the Interior Mauricio López Bonilla, Byron Lima left Colonel Byron Disrael Lima Estrada, and Sergeant prison, “routinely, as he pleased, with contacts from José Obdulio Villanueva, were convicted for the 1998 within the prison system and in private vehicles.”30 murder of Bishop Juan José Gerardi. Gerardi was killed During the hearing on the matter, Lima Oliva admitted two days after he presented a report on human rights having been authorized to leave prison 37 times in the violations during Guatemala’s armed conflict.24 The previous year.31 Luis Alberto González, the Director Third Sentencing Court (Tribunal Tercero de Sentencia) General of the penitentiary system, and the prison sentenced Lima Oliva, Lima Estrada,25 and Villanueva26 director both lost their jobs over the afair. The judge to 30 years in prison—later reduced to 20—for the who handled his case later dismissed it and, through crime.27 appeals, Lima Oliva was able to block his transfer to a maximum security prison and remain in Pavoncito. Despite his sentence, Lima made use of his contacts within the military and the government to continue According to news reports, the Public Prosecutor’s his criminal activities from within prison. In the 13 Ofce has opened 12 investigations against Lima years that he has been in prison, he has constructed Oliva since he entered the penitentiary system for a powerful and lucrative empire that enjoys the crimes ranging from falsifying documents, to threats, protection of the penitentiary system. He has enjoyed blackmail, and drug trafcking.32 None of them made it numerous privileges, including the use of telephones to court, as they were either dismissed or declared to and computers with which he has been able to be lacking sufcient evidence.33 maintain his Facebook page, Twitter account, and newspaper column in the Metropolitano. In 2010, he In September 2014, his reign was finally cut short. founded within the Pavoncito prison the Torre Fuerte After more than a year of investigations, the CICIG sewing cooperative, which makes clothing, including broke up the corruption ring Lima Oliva directed from for the Ministries of Defense and the Interior. The jail—a network that reached the highest levels of factory also made T-shirts for the Patriot political party the penitentiary system.34 The director of the prison (Partida Patriota) during the presidential campaign.28 system, Édgar Josué Camargo, the ex-deputy director, Edy Fisher, and 12 others were also charged. In 2010, Lima Oliva made the news again after local media revealed information found in notebooks According to the investigation, Lima Oliva received that had been confiscated during a prison search. money and goods in exchange for “selling” an array of According to these reports, he had recorded in his benefits to other prisoners that included cell phones, notebooks payments of thousands of Quetzals for food, home appliances, conjugal visits, and transfers to vehicles and real estate as well as names and emails other prisons.35 According to the CICIG, the payment of alleged drug trafckers. The notes also included for a transfer to another prison, the network’s principal information about purchases of weapons and activity, cost as much as $100,000, of which the prison bulletproof vests.29 system director received at least $6,000.36 8 The International Commission against Impunity in Guatemala

Lima Oliva admitted that he had contact with various administration hired 35 people, more than half of whom ofcials and public figures while in prison.37 His Lima Oliva had allegedly endorsed.41 relationships with high-level ofcials are documented on his social network accounts, where he has posted The relationship between Lima Oliva, Camargo, photos of himself with various ofcials, including the and Fisher dates back to their army days. All three Patriot Party congressman Juan Pablo Urrea and the were members of the 108th graduating class of the Ambassador of Taiwan.38 “You only need to see his Polytechnic School. López Bonilla taught all three during Facebook account to appreciate the power he has,” said their time there.42 the CICIG’s Commissioner, Iván Velásquez.39 These connections between military members and According to media reports, Lima Oliva’s influence was public ofcials reveal the collusion that enabled Lima so great that in 2011 he supposedly sent the Minister to build his empire. According to Velásquez, “Lima was of the Interior a list of people he believed should hold the real authority to many prisoners. They went to him important positions within the penitentiary system.40 to request transfers, favors, and rights. Lima’s influence During the first trimester of 2012, the Pérez Molina within the prison system is unquestionable.”43

In other countries, the creators of these criminal networks actions have drained state resources, undermined the law, are political fgures in the highest levels of corrupt and eroded respect for human rights. governments. Taking advantage of their positions and infuence, they are able to manipulate state institutions. As will be described in more detail in the pages that At times they can attain near absolute control of the follow, the CICIG has had an impact on criminal political system to guarantee their power, advance and networks. Many of them have sought to shif their power protect their illegal activities, and ensure their protection in the political system, adopting and evolving in response from the law. Tis was the experience of Peru during the to the pressure the Commission has exerted on them. Te Alberto Fujimori regime.44 third chapter describes some of the ways in which these criminal networks have sought to regain their control of In Guatemala’s case, there is a process by which the state the Guatemalan justice system. is co-opted by both illicit and legitimate individuals and groups that use coercion, alliances, and agreements The Agreement for the Creation of the CICIG to manipulate state institutions and obtain long-term Te agreement for the creation of the CICIG was signed economic and legal benefts and social legitimacy.45 To with the United Nations on December 12, 2006 at the co-opt the state, illicit and legal networks take advantage request of the Guatemalan government.48 In May of the of certain institutions—such as political parties and the following year, the Constitutional Court ruled favorably legislative and judicial branches—to infltrate the nucleus on the agreement’s constitutionality. Te ruling came of the state.Te money laundering case involving José just days afer Guatemalan police murdered three Armando Llort Quinteño, the director of Guatemala’s Salvadoran congressmen and their driver in a crime that National Mortgage Credit Bank (Crédito Hipotecario brought renewed national and international attention Nacional, CHN), during the administration of President to Guatemala’s problems. In mid-July, afer its approval Alfonso Portillo is a good example of the capture of a state process stalled in Congress, the proposal sufered what institution. In this case, the relationships and agreements at the time appeared to be a fatal blow. Te Guatemalan between criminal actors and high-level public ofcials congressional international relations committee voted allowed for massive and systematic money laundering.46 against the Commission, citing sovereignty concerns. It was the use of this network that made possible the Te committee’s vote caused much consternation among national and international transactions that laundered many sectors of Guatemalan society and the international at least $20 million dollars—something that might not community. Nonetheless, afer a highly polarized debate, have been possible through simple bribes and coercion.47 Congress fnally ratifed the agreement on August 1. Te Te impact of the infltration of members of criminal Commission’s mandate began on September 4, 2007. organizations into the state has been devastating. Teir 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 9

Much like an international prosecutor’s ofce, the CICIG was primarily designed to strengthen and improve the ASTILLO judicial system in country where impunity had long C reigned. (According to ofcial statistics, 96 to 98 percent of murders went unpunished at the time the Commission P/MOISES P/MOISES was founded.49) At the same time, the CICIG was A conceived of as a political actor whose goals went far OTO: H beyond those of traditional mechanisms of international P cooperation: it was set up to promote much needed reforms to provide Guatemala with efective justice and security systems, which had been pending since the end of the armed confict.

With this is mind, the agreement established the CICIG as an independent entity to support the Public Prosecutor’s Ofce (Ministerio Público, MP), the National Civilian

Police (Policía Nacional Civil, PNC), and other state Former Vice-President Eduardo Stein (left); Former Ambassador to the United Nations Gert institutions in the investigation of crimes committed by Rosenthal (center); and former Director of the CICIG Carlos Castresana (right) during the illegal groups and clandestine security structures, in order INAUGURATIONOFTHE#OMMISSIONON&RIDAY *ANUARY IN'UATEMALA#ITY to help dismantle them. number of complex cases, it also works on building the 54 In focusing on the CIACS, the agreement identifed these capacity of Guatemalan justice institutions. groups and their illegal acts as the primary challenges to the full enjoyment and exercise of civil and political rights. Doing so also suggested that the CIACS possess THE CICIG EXPERIENCE direct or indirect ties to state agents and have the ability to Te CICIG began its mandate in September 2007 in an generate impunity for their illegal activities.50 ideologically divided country with a skeptical civil society. Its population was fearful and had gone from sufering Te agreement granted the CICIG the ability to investigate political violence during the armed confict to enduring the CIACS at will. It assigned the Commission with the common crimes and the increasing presence and task of collaborating with state entities and promoting infuence of national and international organized crime investigations, prosecutions, and punishments to syndicates. Indeed, the rates of violent crime during peace dismantle the illegal groups. It gave the CICIG the times were twice those during the war. power to act as a complementary prosecutor51 in court proceedings and to promote administrative disciplinary Te CICIG emerged from the need for a mechanism processes against any public ofcials associated with to support and strengthen the rule of law in the post- these groups.52 Te Commission also has the power confict country. Guatemala needed help controlling to recommend public policies and legal, judicial, and illegal groups and clandestine security structures that had institutional reforms to prevent the resurgence of the the ability to ensure impunity for their crimes because CIACS.53 of their direct and indirect links to government ofcials. Te CIACS that remained afer the end of the armed Te CICIG is a hybrid mechanism of international confict and the signing of the peace accords transformed cooperation without precedent anywhere in the world. It themselves to adapt to a new context and remained is an international and independent criminal investigative active. Te existing justice system lacked the ability and entity that operates under Guatemalan law and that the will to protect and ensure citizens’ efective enjoyment relies upon the Guatemalan justice system. While the of their rights. In the face of the fagging abilitites of the Commission investigates and participates in a limited authorities and the absence of the political conditions 10 The International Commission against Impunity in Guatemala

By systematizing the modus operandi of the criminal networks, investigators have been better able to ascertain their structures, how they operate, and their geographic range, which has led to convictions that have resolved many violent homicides attributable to the same group and even the arrest of entire structures.

to confront the problem, the government of Guatemala la Impunidad, FECI). Tis bureau handles investigations asked for the UN’s collaboration. Te CICIG was thus against the CIACS on a case-by-case agreement between born as an international organization working within the the Attorney General and the Commissioner. Te Guatemalan legal system and other national institutions coordinated investigative activities are carried out in to make them functional. Various international accordance with the Guatemalan criminal code, allowing instruments have established access to justice, the CICIG to legally request summons, searches, reparations, and judicial protection as fundamental rights and other pertinent proceedings, including requests each state must guarantee. Consequently, as other states for subpoenas; the calling of witnesses, experts, or have done either out of their own accord or at the behest defendants; and inspections or search warrants. of civil society, Guatemala recognized its limitations and the deterioration of the rule of law in the country, and Newly appointed Attorney General Amílcar Velásquez sought the support of the international community to Zárate created the FECI in September 2008. It included build capacity. three prosecutors’ bureaus and was stafed with career prosecutors that the CICIG chose and trained.57 Te Rather than recount the past nearly eight years of the Commission trained this unit in investigative techniques, CICIG’s work, the following report will analyze some of personnel development, and the legal and human rights its principle achievements and the challenges it faces as it frameworks applicable to investigations. It also helped works to build capacity and political will and to combat with the security and mobilization of some of the agents and dismantle criminal organizations deeply entrenched and assistant attorneys until the Public Prosecutor’s Ofce in the state apparatus. was able to secure its own resources for these activities.

Building State Capacity In addition to creating the FECI, the CICIG restructured A Joint Approach to Criminal Investigations the Analysis Unit of the Public Prosecutor’s Ofce. In Te CICIG adopted a learning-while-doing work method doing so, it played a fundamental role in building capacity with the Public Prosecutor’s Ofce and the National to gather information needed to design a criminal Civilian Police to leave them with a skill set before the prosecution strategy.58 Tis included the adoption of Commission’s mandate ends.55 In February 2008, the a new investigative methodology oriented at group Commission signed a bilateral cooperation agreement investigations of criminal networks as opposed to case- with the Public Prosecutor’s Ofce to support their by-case investigations. By systematizing the modus investigations and prosecution of crimes committed operandi of the criminal networks, investigators have by the CIACS.56 Te accord provided for the creation been better able to ascertain their structures, how they of a Special Prosecutor’s Ofce, initially known as the operate, and their geographic range, which has led to Special Prosecution Unit Assigned to CICIG (Unidad convictions that have resolved many violent homicides Especial de Fiscalía de Apoyo a la CIGIG, UEFAC). attributable to the same group and even the arrest of Te name was changed in 2011 to the Special Anti- entire structures. Impunity Prosecutor’s Bureau (Fiscalía Especial contra 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 11

%842!*5$)#)!,+),,).'3!44(%(!.$3/&! .%47/2+/&3%#52)49/&&)#)!,3

In August 2010, as a result of a CICIG investigation, the First Criminal Court (Juzgado Primero de Instancia Penal) issued arrest warrants for high-level ofcials in President Óscar Berger Perdomo’s administration

(2004-2008) for their participation in the extrajudicial PUBLINEWS OTO: H killings of ten prisoners. Among them were the P Director of the National Civilian Police, Erwin Sperisen, the Deputy-Director of the Criminal Investigations Division of the police, Javier Figueroa,59 the Chief of the Criminal Investigations Division of the police, Victor Hugo Soto, the Director of the Penitentiary System, &ROM,EFTTO2IGHT!LEJANDRO'IAMMATTEI %RWIN3PERISEN *AVIER 60 Alejandro Giammattei, and the Minister of the Figueroa and Carlos Vielmann. Interior, Carlos Vielmann.61 the seven prisoners had been victims of extrajudicial According to the CICIG, its investigation revealed that executions.65 The CICIG’s investigations concluded that high-level ofcials, police, and military members had the seven prisoners had been selected for execution in created a parallel structure within the Ministry of the an operation designed to regain control of the prison.66 Interior and the General Directorate of the National The Commission determined in both cases that there Civilian Police. The group allegedly operated between was hierarchical responsibility for the killings.67 2004 and 2007 to assassinate escapees and prisoners who resisted orders.62 The investigation revealed As a result of the investigations, the First High Risk that this structure was also involved in murders, Court B (Tribunal Primero de Mayor Riesgo B) on August drug trafcking, money laundering, kidnapping, and 8, 2013 sentenced Víctor Hugo Soto, former Chief of extortion, among other illegal activities.63 the Crime Investigation Division of the police, to 33 years in prison for his participation in the extrajudicial The investigations concerned two operations allegedly killings of ten prisoners.68 Three more individuals were formulated at the highest levels of the Ministry of convicted, while four others were declared not guilty. the Interior and the National Civilian Police. The first, The Supreme Court in January 2015 upheld Soto’s known as “Plan Gavilán,” took place after the escape of conviction, overturning an appeals court ruling that 19 prisoners from the high-security prison El Infiernito had previously overturned the original sentence.69 in Escuintla on October 22, 2005. According to the CICIG’s investigation, on November 3, 2005, the police Of the high-level ofcials implicated in the parallel executed one of the prisoners after he was caught criminal structure, Alejandro Giammattei was the only earlier that morning. Nearly a month later, two more one to be tried in Guatemala. In May 2011, the First prisoners were located, captured, and executed by High Risk Court dismissed the case against him for members of the unit Soto commanded.64 lack of evidence, and he was acquitted in July 2012.70 The other three ofcials made use of their double Later, on September 25, 2006, the Ministry of nationalities to leave Guatemala—Figueroa to Austria, the Interior, the National Civilian Police, and the Sperisen to Switzerland, and Vielmann to Spain. penitentiary system carried out a second operation (“Pavo Real”) to take back control of the Pavón prison The CICIG and the Public Prosecutor’s Ofce from the prisoners, during which seven prisoners requested the application of existing reciprocity were killed. Ofcials maintained that the prisoners agreements between Guatemala and the three died during a violent confrontation with prison European countries. In November 2013, an Austrian authorities. In December of the same year, a report court declared Figueroa not guilty of complicity in from the Human Rights Ombudsman indicated that the murders of the Pavón prisoners.71 A year later, in 12 The International Commission against Impunity in Guatemala

June 2014, a Swiss court sentenced Spiersen to life in in June 2013 for his alleged participation in the prison for his participation in the Pavón operation.72 killings of the ten prisoners. In March 2014, the court Citing a lack of evidence, the court found him not confirmed that the ex-minister could stand trial in guilty in the executions at El Infiernito. The Spanish Spain given sufcient evidence of his participation in National Court began proceedings against Vielmann the chain of events.73.

Te Public Prosecutor’s Ofce investigates the cases with weaknesses. Tis partly explains why the CIACS have the assistance of the CICIG. When the form or size of the not yet been dismantled. Tese new tools have been criminal structures involved and the crimes they commit used in investigations undertaken by the FECI and by make a case too complex, the Commission, out of its other prosecutor bureaus, such as those specializing in own accord or in response to a request from the Attorney drug trafcking, organized crime, human trafcking, General, transfers the case to the Special Prosecutor’s and corruption of the public administration. Teir Bureau. As such, the CICIG has established a system of implementation has resulted in a noticeable diference in gradual intervention in the criminal process with the aim the prosecution, sentencing, and conviction of members of strengthening the capabilities of the Public Prosecutor’s of criminal organizations. Ofce to exercise its functions. Nonetheless, it should be noted that, to date, Congress As part of this capacity building, the CICIG also worked has approved only four of the CICIG’s legislative reform with the National Civilian Police to create police units proposals it presented in October 2008 and June 2009.76 to support the Special Prosecutor’s Bureau and the Evidently, enacting these changes is the responsibility Commission. Te Ministry of the Interior in 2008 of the state, and while the Commission can recommend assigned 30 police ofcers to these units, of which 20 were reforms, their approval ultimately hinges on state chosen and trained by the CICIG.74 Even though they authorities. represent a small fraction of the police force, the CICIG’s work with the National Civilian Police demonstrates that Te existence of an adequate judicial framework would signifcant changes in police culture can be achieved. Tis afect not only the reach of the CICIG’s investigations but is especially important given that many experts consider also the state’s ability to confront local and transnational the police to be among the most corrupt institutions in criminal threats. Some very important proposals that the country.75 Te sustainability of these eforts, however, would have a great impact on the fght against impunity has been limited by scant progress in the reform of the have yet to be approved. Tese include proposals to police force. reform the banking secrets law and the laws for legal protection (leyes de amparo)77 and immunity, which Legislative Reforms and Public Policy Proposals would limit the use of said measures and prevent their Te CICIG’s mandate enables it to make abuse. Many experts agree that the impasse on these recommendations for legislative reforms and to propose proposed reforms is owed primarily to a lack of solid public policies that can improve the performance of political support and the failure of the executive branch institutions—such as the police, the Public Prosecutor’s to present and promote the reforms as stipulated in the Ofce, the judiciary, the prison system—in the fght CICIG agreement. Without consensus and political against organized crime. Among these are a set of support among diferent political factions, these reforms, proposals that seek to provide better investigative tools as well as other more substantial and essential ones, and enhance criminal prosecutions and sentencing. Te will not come to fruition. Without these legal and Commission has provided national institutions with constitutional instruments, it will be difcult to take on many legal instruments essential for combating criminal the illegal structures that have infltrated state institutions, groups (See box on p. 13). Guatemalan institutions and it will be even more difcult to take on transnational previously lacked many of these legal instruments, organized crime. Among the much-needed reforms is the allowing criminal structures to take advantage of these establishment of a long-term criminal policy and changes 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 13

to the procedures for the selection of magistrates to the between these groups and authorities, their infltration Constitutional Court, Supreme Court, Courts of Appeal, of the state, and the protection they continue to enjoy and the Public Prosecutor's Ofce. Te levels of violence underscore the need for these reforms. the criminal networks continue to use, the collusion

Proposed Legal Instruments for Combating Criminal Networks

Wire Tapping: One of the criminal investigative tools modifications to the Law against Organized Crime that the CICIG has championed is the use of legal (Ley contra la Delincuencia Organizada) that introduced wiretaps. Up until 2008, there were no laws allowing the figure of the confidential informant without these for a judicial order to green-light wiretaps to monitor restrictions, enabling its use in organized crime cases. calls or text messages, trace calls, or obtain information 79 The law is similar to laws in many countries that face on the owners of a phone line.78 Both public and private similar problems with organized crime. It is incredibly security agencies wiretapped illegally for illicit or important to establish appropriate procedures for the criminal purposes, which violated the civil rights of usage of this instrument to prevent its abuse. the population. It is ironic that the Public Prosecutor’s Ofce and the National Civilian Police, the only entities Controlled Delivery Operations and Undercover that should be able to do this legally, lacked the power, Agents: Among the special investigation techniques equipment, programs, and personnel needed to use that the CICIG recommended is the use of controlled this investigative tool. delivery operations. Within a framework of combating organized crime, this technique allows for competent Through an agreement with the Public Prosecutor’s authorities to supervise the circulation of illegal or Ofce, the National Civilian Police, and the Ministry suspicious remittances (money, drugs, weapons, of the Interior, the CICIG developed the legal design etc.) inside and outside the country that are part of of a system for the wiretapping of phones and other alleged criminal activities in order to investigate crime means of communication and created a Wiretapping and identify those involved in commissioning them. Unit (Unidad de Métodos Especiales de Investigación, Such a controlled delivery is a technique used by law UME) within the Public Prosecutor’s Ofce. With the enforcement around the world that requires adequate support of the international community, particularly oversight and monitoring mechanisms for its proper investigative agencies from the United States and implementation. Nonetheless, this tool has not been Canada, the Commission equipped, selected, and properly put to use because of budgetary constraints trained the unit’s personnel. The UME began its work in of Guatemalan counterparts and the failure of the June 2009. Ministry of the Interior to provide trained police ofcers for these functions. The Confidential Informant: The figure of the confidential informant allows members of organized The CICIG also proposed the legal authorization of crime groups to receive legal benefits in exchange for electronic and other forms of surveillance as well as information that is relevant to an investigation and that the use of undercover agents with the prior approval could lead to the dismantling a criminal organization. and under the strict control of the Public Prosecutor’s The figure of the confidential informant has existed in Ofce.80 Guatemala since 2006, but the law did not allow for its application to members of organized crime groups who Witness Protection Program: The implementation were responsible for murder. In Guatemala, this meant of the Witness Protection Program is one of the most that the measure was virtually inapplicable given that valuable initiatives the CICIG has promoted. Guatemala all relevant groups were involved, to a certain extent, had a law regulating the protection of witnesses and in homicides. (In fact, the law had never been applied collaborators,81 but this system was not well-regulated until the CICIG was created.) The CICIG proposed and lacked the economic and logistical resources 14 The International Commission against Impunity in Guatemala

needed to train agents and run the program. Safety identities for efective cooperators, as well as the use problems in protecting high-risk witnesses while of video-conference testimony.83 transporting them to trial were common, and the accused were often able to identify witnesses, making Courts for High-Risk Crimes: Ofcials that work in their relocation necessary. All this created a situation the justice system in Guatemala are very vulnerable. in which the safety of the witnesses and their families In rural areas of the country, the presence of the could not be guaranteed. state and the reach of authority are minimal, making it impossible to efectively protect them. For these The CICIG supported the design of a new structure for reasons, the CICIG proposed the creation of Courts the Witness Protection Program.82 It wrote regulations, for High Risk Crimes, with headquarters in the capital protocols, and a best practices manual, and it but with jurisdiction throughout the country. A similar provided support in identifying safe lodging. With measure was previously in place—the so-called High the support of Colombian prosecutors specialized in Impact Crime Courts (Tribunales de Alto Impacto), but witness protection and the Witness Security Program it failed because the laws governing the courts lacked operated by the United States’ Marshals Service of specificity and provincial judges were overlooked in the Department of Justice, it trained security ofcials favor of those from the capital for all types of cases from the program. The Commission was able to ensure and matters. As a result, the High Impact Crime Courts the support of the international community for this were almost immediately inundated by their caseload. program, which allowed it to promote accords with the diplomatic missions of Spain, Canada, and Holland for The CICIG proposed the creation of centralized, the relocation of witnesses and their families to other high-risk tribunals, clearly outlining their jurisdiction countries in the highest risk cases. and responsibilities as well as the nature and characteristics of the cases they should hear. Since The CICIG also recommended legal modifications to their creation in 2009, the courts have heard cases of make witness protection measures more efective and organized crime and serious violations of human rights. swift. These included provisions for relocation and new

Removing Political Obstacles members of the judiciary and hundreds of members of Among the CICIG’s powers is the authority to initiate the police, including the general director, the deputy administrative proceedings against public ofcials who director, and close to 50 police commissioners. are not fulflling their responsibilities or are blocking, by action or inaction, the work of the Commission. Te In addition, in 2009, the CICIG’s work on the elections CICIG can even participate as an interested third party in for the Supreme Court and the Appeals Courts resulted administrative proceedings. in Congress eliminating three members of the Supreme Court and 20 appeals court judges on grounds that they Even though the CICIG has not made use of this power, were dishonorable. A year later, the CICIG’s actions it has sought to name public ofcials who are not doing resulted in the revocation of the appointment of the their jobs or who are obstructing the CICIG’s quest to attorney general, which enabled Claudia Paz y Paz to clean up infltrated institutions by protecting people be elected in December 2010. Under her leadership, with ties to clandestine groups. Te CICIG has asked important reforms within the Public Prosecutor’s Ofce the president to remove an attorney general, to fre a were put in place. Tese reforms improved investigative dozen lead prosecutors, to revoke the appointment of abilities, increased the success rate in fghting criminal the director of the Public Defender’s Ofce, to dismiss organizations, multiplied the number of arrests in high- 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 15

The CICIG has asked the President to remove an attorney general, to fire a dozen lead prosecutors, to revoke the appointment of the director of the Public Defender’s Office, to dismiss members of the judiciary and hundreds of members of the police, including the general director, the deputy director, and close to 50 police commissioners.

impact crimes, and advanced cases of human rights Investigation and Participation in Criminal violations during the armed confict. She has received Proceedings abundant national and international recognition for her Te most important power granted to the CICIG, without leadership and achievements. a doubt, is its ability to initiate criminal proceedings by fling charges with authorities and by serving as a Tere has been some debate as to whether the CICIG complementary prosecutor on cases that fall under has had adequate documentation for all of the cases of its responsibility. Nonetheless, this also subjects the public ofcials that it has sought to remove from ofce. It Commission to important conditions that arise from both is worth mentioning that the Commission’s eforts have the agreement and from the context in which it operates. been oriented toward cleaning up the justice and security systems in the country. Te CICIG can present a criminal complaint at any time and without authorization from any other national or Tese actions have sent a strong message to the CICIG’s international authority. Tis means that the Commission local counterpart institutions, to Guatemalan public can perform its own investigations, using strategic and ofcials, and, most importantly, to civil society. Under criminal analysis capabilities. At the same time, the positive leadership and a signifcantly less hostile work CICIG can serve as a complementary prosecutor, meaning environment, committed ofcials can get their work it becomes a part of the proceedings and can request done. Trough these actions, the population has become examination of evidence or decisions from the courts. In more engaged and more trusting and supportive of the contrast to its other powers, this authority is subordinate legal system. to the action and consent of the Public Prosecutor’s Ofce and the ruling of the judiciary. As with any judiciary, the Without these disciplinary actions, it would be impossible judge can dismiss a case that the Commission presents for for the CICIG to fulfll its mandate. Te Commission lack of grounds or rule to acquit. was designed to work within the legal and institutional framework of the state, and it is very difcult for the As an international organization, the CICIG’s actions CICIG to accomplish its goals when illegal groups have not only carry legal weight, they also have political infltrated the institutions with which it works. implications. Given this, the Commission’s actions are subject to the principle of discretionary prosecution. It is Te task of removing public ofcials who are not fulflling not just CICIG’s actions that matter, but also the context their responsibilities or otherwise obstructing the CICIG’s in which it performs them: how and when it exercises its work is still pending on the Commission’s agenda. As is actions, against whom, for which crimes, and where (only explored in more detail in the following pages, illegal and in Guatemala or when requesting assistance from the parallel powers have sought to rebuild their networks of justice authorities from other countries). infuence. Tis became evident during the 2014 selection process for attorney general, justices of the Supreme Clearly, any international mechanism for strengthening Court and Appeals Courts, and members of the Supreme the rule of law must ensure the legality of its actions Electoral Tribunal. and, at the same time, must preserve the democratic 16 The International Commission against Impunity in Guatemala

governability of the receiving country. Finally, as was In its frst year, the CICIG received 64 accusations, of mentioned above, among the most important goals which it selected 15 to investigate directly, the majority in included in its mandate is to build a sustainable capacity coordination with the Public Prosecutor’s Ofce. Tese in the judiciary and security systems. cases included crimes of feminicide, murders of bus drivers, human trafcking, and attacks on and murders Te selection process of the cases investigated by the of union members, activists, and human rights defenders, CICIG must be understood in this context, and must which the Commission believed were committed by take into account its twin goals of combating criminal members of the CIACS.84 structures and strengthening Guatemala’s institutions.

CORRUPTION CASE AGAINST PRESIDENT ALFONSO PORTILLO E

Alfonso Portillo Cabrera, the Guatemalan Republican F E Front (Frente Republicano Guatemalteco, FRG)

candidate, took ofce as President in 2000, promising OTO: H to battle corruption and make the country safer. His P administration, however, was plagued by numerous cases of corruption and graft.85

Among the cases for which he stood accused was the theft of 120 million Quetzals (US$15 million) from the Ministry of Defense. According to the CICIG’s investigations, Portillo made budgetary modifications Guatemala’s former President Alfonso Portillo captured in a joint operation by the CICIG and Guatemalan authorities on without justifiable cause. These changes were approved *ANUARY  by the then-Minister of Defense Eduardo Arévalo Lacs and the Finance Minister Manuel Maza Castellanos. In May 2011, the Eleventh Tribunal for Drug Trafcking Investigations revealed that military members Jacobo and Environmental Crimes (Tribunal Undécimo de Esdrás Salán Sánchez and Napoleón Rojas Méndez Sentencia Penal, Narcoactividad y Delitos contra el transported 30 million Quetzals ($3.75 million) in cash Ambiente) found Portillo, Arévalo Lacs, and Maza and turned it over to José Armando Llort Quiteño, ex- Castellanos not guilty of embezzling 120 million chief of the National Mortgage Credit Bank.86 The rest Quetzals ($15,694,480).91 While two of the three of the money was deposited in Portillo’s personal bank judges on the case ruled in their favor, their judgment accounts and in accounts belonging to his relatives.87 was widely questioned after security camera footage surfaced showing one of Portillo’s defense lawyers In the face of widespread protests and corruption meeting with the husband of one of the two judges.92 accusations, Portillo fled to Mexico after his term ended The CICIG appealed the ruling in 2013 and, after in 2004 and lost his political immunity.88 He fled just numerous delays caused by the judges’ refusals to hours before Attorney General Carlos de León announced accept the appeal, the Third Appeals Court for Criminal that he would seek a judicial order to prevent Portillo Cases (Corte de Apelaciones del Ramo Penal) upheld the from leaving the country.89 After spending more than four original ruling.93 years in Mexico, Portillo was extradited to Guatemala in October 2008 to stand trial. He managed to avoid prison In May 2013, Portillo was extradited to the United by paying a 1 million Quetzal bail ($131,000).90 In 2010, States at the request of the Attorney’s Ofce for the in a CICIG operation, he was captured on Guatemala’s Southern District of New York for laundering $70 Caribbean coast while attempting to flee to Belize. million through U.S. banks.94 In March 2014, Portillo Guatemalan authorities also detained his accomplices pled guilty after acknowledging that he laundered Arévalo Lacs and Maza Castellanos. $2.5 million from the government of Taiwan. He 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 17

also admitted to laundering money through the ministry (ex-General Enrique Ríos Sosa, Miguel Ángel International Bank of Miami before ultimately Salguero Torres, Luis Alberto Gómez Guillermo, Sergio depositing it in his relatives’ bank account in Paris.95 Hugo Cárdenas Sagastume, Randolfo Leonel Chacón By pleading guilty, he was able to reduce his sentence. Álvarez, Pedro Adolfo Catalán Muñoz, Moisés Eduardo In May 2014, he was sentenced by a federal court in Galindo Ruíz and Luis Catarino Estrada Valenzuela). Manhattan to five years and 10 months in prison and A judge closed the case in September of 2013. The ordered to return the $2.5 million.96 Portillo returned to Commission and the FECI appealed the ruling, and Guatemala in February of this year because the years an appeals court in March 2015 ruled that the eight he served after his arrest in 2010 were considered a military members should stand trial because there part of his sentence. “existed the potential to demonstrate that they took part in the diversion of funds.”98 In June 2014, a Guatemalan court sentenced Salán Sánchez and Rojas Méndez, the two members of The CICIG investigations revealed acts of corruption the military, to five years and three months in prison in the highest levels of the Guatemalan government. for their participation in the embezzlement of public They exposed the ways in which networks operate to funds.97 protect members of corruption rings and demonstrated how they abuse legal recourses to benefit sectors of The CICIG also investigated eight high-level Ministry of the military that use their public ofces for personal Defense ofcials for the theft of public funds from the enrichment.

By the end of August 2013, the CICIG had investigated authorities ofen have complicated or even contradictory approximately 150 cases, including crimes of drug perspectives on the role they expect the international trafcking, altering and stealing evidence by state agents, mechanism to play. Tis can make the mechanism’s work corruption and murders linked to powerful individuals, challenging as the success of any international mechanism and money laundering. It had also participated as a seeking to strengthen the rule of law depends on the complementary prosecutor in more than 50 cases.99 collaboration of national authorities. Among the most paradigmatic were the assassination of lawyer Rodrigo Rosenberg (See box on p.19), the case Political consensus did not exist when the CICIG was against President Alfonso Portillo for corruption (See box created, nor has it always been present since then. on p.16), the extrajudicial killings by a network with ties Strong congressional opposition existed even before the to security institutions (See box on p.11), the case against agreement was ratifed in Congress on August 1, 2007.100 the Mendoza Matta mafa for murders, disappearances, Numerous observers maintain that its eventual approval usurpation of land, and other crimes in the departments was largely due to the murders in Guatemala of three of Izabal and Petén (See box on p.28), the case against Salvadoran congressmen from the Central American the criminal network in the prison system directed by Parliament (Parlamento Centroamericano, PARLACEN), Captain Byron Lima Oliva, with the participation of high- which led to a public and media outcry and renewed the level public ofcials (See box on p.7), and most recently, push to reform the security apparatus. Strong support the case against a tax-fraud ring that implicated high-level from the international community also played a role in ofcials including the vice president’s personal secretary the agreement’s approval. (See box on p.22). Since its inception and during diferent periods of its work, the CICIG’s initiatives have faced institutional and political Creating a Political Consensus resistance from certain sectors. Te ability to overcome International mechanisms for strengthening the rule resistance and build the consensus needed to carry out of law are ofen established in complicated political its mandate has required advocacy and raising awareness contexts. Even though national authorities request the with all of the relevant social sectors. Te support of collaboration of the international community, these same the diplomatic community in the country has also been 18 The International Commission against Impunity in Guatemala

essential. Te Commission has invested much efort in Convocatoria Ciudadana, Guatemala Visible (an initiative educating the citizenry about its work and winning the to make transparent the process of naming members to support of diverse sectors of Guatemalan society. the judiciary), the youth movement,101 and the tireless eforts of human rights groups were decisive in correcting In the best of cases, the international mechanism in 2009 the course of the selection process for the appeals should be able to count on the active participation of courts and the Supreme Court magistrates in 2009. Tey the institutions and organizations behind its creation. also helped push Congress to reform the law governing It should build a partnership with the national and the nominating committees and to remove three international counterparts in charge of implementing its congressionally elected Supreme Court judges—steps the mandate, and in the same way, it should seek active and CICIG had recommended and supported. public collaboration from the counterparts that signed the agreement. Tis could involve public meetings, joint While the CICIG’s media presence produced immediate communications, and multilateral events to analyze and positive efects, the absence of a professionally evaluate the experience, the mechanism’s performance, designed media strategy during the early period of the and its results, with the permanent participation of the Commission’s work had negative consequences. Groups donor states, civil society, and relevant sectors. and sectors that opposed the CICIG were able to take advantage of the situation to launch a media campaign In the case of the CICIG, this collaboration has not always against the Commission, and in particular, against the been present or has occurred only to varying degrees. Commissioner. Te campaign managed to divert attention Tis has afected the Commission’s work. An instrument away from a debate about the problems that gave rise to like the CICIG cannot function in an isolated manner. It the CICIG and its eforts to investigate and dismantle requires the political will of its counterparts, especially the criminal structures. Public Prosecutor’s Ofce, the police, and the judiciary. The Demonstration Effect102 Mobilizing Civil Society: The Importance of a A mechanism like the CICIG will never have the time, Communications Strategy budget, personnel, mandate nor authority to make all Te CICIG’s experience demonstrates the importance of of the changes to the justice and security system that civil society support. On the one hand, it has shown the are necessary in a country like Guatemala, with its weak role that a mechanism of this kind can play in increasing institutions and powerful clandestine organizations. public awareness of the impact that criminal networks What is essential is to regain citizens’ faith in the national can have on democratic institutions and on everyday institutions that are obligated to serve them. To achieve life, which has generated national demand for a stronger this, the mechanism must work jointly with local rule of law. On the other hand, it has delineated the authorities—especially the Public Prosecutor’s Ofce importance of a proactive communication strategy and a or its equivalent—to select cases that will dismantle participating society for the success of a mechanism such currently operating clandestine structures, and at the as this. same time, strengthen the performance of its Guatemalan counterparts. Tis will demonstrate that no one is above Te CICIG’s public presence and engagement with society the law.103 For these eforts to be sustainable in the long gave force to the popular movement that coalesced term, the prosecutors and the Commission need to win around the Commission in its frst years of work. On June convictions, preferably in Guatemala’s own courts. Tis 2, 2009, in a public act called Convocatoria Ciudadana does not preclude resorting to foreign courts when it is (Citizen Gathering), 35 civil society organizations, both feasible and when the accused are using their power private sector groups, indigenous movement groups, to ensure their impunity at home. progressive and conservative NGOs, environmentalists, feminists, human rights groups, and university and Te CICIG and the Public Prosecutor’s Ofce have religious organizations gathered together to express their launched 204 investigations involving 33 criminal unconditional support for the CICIG, the judiciary, and structures and 161 government ofcials.104 Among its the fght against impunity. results are the convictions against a former president of 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 19

the country; various former defense and interior ministers; levels of government, including the vice president’s former directors and other high-ranking members of the private secretary. National Civilian Police; retired generals and other high- ranking members of the armed forces; ofcials from the 4(%()*!#+).'/&4(%*534)#%3934%-"9 penitentiary system; politicians; businessmen; members CRIMINAL PARALLEL POWERS of national and transnational criminal organizations; hit Despite the CICIG’S signifcant progress in dismantling men; drug trafckers; and others. criminal networks and strengthening the judiciary, there is still much work to be done. Unsurprisingly, as Trough its actions, the CICIG has made Guatemala’s the Commission made headway with its investigations justice system function, demonstrating that justice can and prosecutions, criminal networks and their allies be served using Guatemala’s laws in its own courts. sought to regroup and recover lost ground to counteract While there is still a long way to go, the Commission has the CICIG’s work and safeguard their impunity.106 Tis demonstrated that it is possible to build a Guatemalan is an important lesson. Once they came under attack, justice system in which no one is above the law or exempt the criminal networks sought to respond and adapt. from prosecution.105 Dismantling these groups is not an easy task in Guatemala or in other countries facing similar challenges. Among the most important turning points for this demonstration efect and for Guatemalan public Te quest of criminal and parallel powers to adapt to opinion were the investigation of the murder of the a changing landscape is evident in their attempts to lawyer Rodrigo Rosenberg, which helped to safeguard control and co-opt the judiciary and justice system. the political stability of President Álvaro Colom’s Teir infltration of state institutions is not coincidental, administration; the arrest in January 2010 of former as many of these networks do this to secure impunity President Alfonso Portillo while he was trying to fee for their present and past crimes, including those to Belize; the dismantling of the corruption ring that perpetrated during the armed confict. Te political- operated out of the Pavoncito prison, which was a big criminal infltration has spread to other institutions, blow to Captain Byron Lima Oliva’s criminal empire; including universities and the Bar Association, which play and, more recently, the uncovering of a massive tax fraud an important role in nominating key personnel to the ring in Guatemala that implicated ofcials in the highest judiciary and the Public Prosecutor’s Ofce. 107

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On May 10, 2009, Rodrigo Rosenberg Marzano, a prestigious Guatemalan lawyer, was murdered while riding his bicycle in a residential Guatemala City neighborhood. OTO: YOUTUBE OTO: H P Days before he was shot, Rosenberg had recorded a video in which he blamed his murder on then-President Álvaro Colom, his wife, Sandra Colom, and their inner circle.108 In the video, Rosenberg said that his death

was related to the murder of his client, businessman Video of Rodrigo Rosenberg Marzano recorded days before his Khalil Musa, and his daughter, Marjorie Musa, after the murder. former had presumably discovered acts of corruption in a local bank.109 national television, caused quite a stir in Guatemala. The severity of the accusation unleashed a political The video, which was first seen at Rosenberg’s funeral and social crisis that threatened to topple the Colom and later uploaded to YouTube and broadcast on administration. 20 The International Commission against Impunity in Guatemala

The Guatemalan government, diverse sectors within Francisco and Estuardo Valdés Paiz, to assassinate a the country, and the international community asked man who Rosenberg claimed was extorting him. 112 the CICIG to investigate the case. The Commission According to the investigation, the Valdés Paiz brothers assigned more than 300 ofcials, including lawyers, asked one of their bodyguards to hire a band of hit analysts, police investigators, and security personnel men to execute the extortionist not knowing the target to the UEFAC’s investigation. In September 2009, the was Rosenberg himself. By complying, they converted Guatemalan police arrested individuals suspected to themselves into the intellectual authors of the crime. 113 be the material authors of the crime. The suspects were members of a criminal organization that included The CICIG’s investigations demonstrated what can be ex-police, an ex-military ofcer, and members of achieved with resources and with the use of scientific a gang.110 Eight months later, in January 2010, the evidence, including, in this case, security camera CICIG announced the results of its investigation. In footage, phone records, photographs, and wiretaps. The an unexpected turn, the investigation revealed that unexpected results of the Commission’s investigation Rosenberg had planned his own death.111 contributed to restoring political stability in the country and opened a window into the culture of violence and In a nationally televised speech, then-Commissioner of complicity within certain sectors of Guatemala’s most the CICIG Carlos Castresana revealed that Rosenberg privileged class. had asked for help from his cousins, businessmen

Tis objective to hijack and restructure the state appears of candidates that had previously been agreed upon and in advanced and complex contexts of corruption. In these without debating the honorability of the nominees.117 situations, licit and illicit actors, through legitimate or illegitimate actions, seek to manipulate the state from In May 2010, President Álvaro Colom named Conrado within its institutions and infuence the development, Arnulfo Reyes Attorney General. As soon as he took modifcation, and implementation of public policies.114 ofce, Reyes appeared to attempt to block the CICIG’s investigations. For instance, he removed prosecutors In Guatemala’s case, one of the frst victims of this process and investigators working with the Commission.118 was Attorney General Amílcar Velázquez Zárate, who was Te CICIG made public statements about Reyes’ known for running a more efcient Public Prosecutor’s connections to parallel power structures and, afer only Ofce. Velázquez became Attorney General in August 17 days in ofce, he was stripped of his duties.119 In June 2008 afer his predecessor failed to cooperate with 2010, the Constitutional Court repealed his election on the CICIG. Velázquez Zárate’s arrival brought about a procedural grounds. coordinated working relationship with the Commission that facilitated the creation of the special prosecutor’s Reyes’ removal created the opportunity for Claudia Paz ofce (FECI), the Wiretapping Unit, the restructuring of y Paz Bailey to become attorney general. She achieved the Analysis Unit, the provision of technical support for substantial progress in the fght against impunity and investigations in a few specifc cases, and the frst actions organized crime and made important reforms within the against prosecutors who were obstructing justice.115 Tese Public Prosecutor’s Ofce. In just three years, hundreds actions sent a positive signal for change within the Public of members of the Zeta gangs and soldiers accused of Prosecutor’s Ofce. human rights violations during the armed confict were convicted. Her ofce was also behind the arrest and In spite of his eforts, the Nominating Committees—key extradition of local drug kingpins who had long enjoyed entities in the selection of high-level justice ofcials— impunity for their crimes.120 made his reelection impossible afer they lef his name of the list of six candidates presented to the President in Despite her achievements and numerous international 2010.116 Despite the implementation of various tools to recognitions, her mandate, set to end in December 2014, ensure a more transparent election, many organizations was cut short. Political pressure and the infuence of maintained that most committee members voted for a list parallel powers succeeded in ousting her in May 2014. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 21

A new nominating committee excluded her candidacy for reelection despite the fact that, according to the evaluation criteria devised by the nomination committee itself, she was the second most qualifed candidate.121

Te methods criminals and political and economic sectors PHOTO: PLAZA PÚBLICA PHOTO: employ to manipulate the nomination process and secure greater control over the judiciary became clear during the more recent selection of Supreme Court and Appellate Court judges.122 Congress elects judges to both these courts every fve years from a list of candidates selected by the Bar Association, deans of law schools, a university rector, and appellate judges. Various organizations have questioned whether this process can truly produce independent and impartial judges considering that it Former Attorney General of Guatemala Claudia Paz y Paz Bailey. encourages candidates to compete for political support in 130 order to be elected or to maintain their positions.123 Tis selection process. In a press conference, Judge Claudia makes the justice system vulnerable to special interests.124 Escobar Mejía said that the “irregularities in the selection As a Guatemalan analyst explained, “the committees and election processes for judges place the judicial 131 are networks woven by private interests, and they have independence of all judges at grave risk.” Escobar also acquired such relevance that everyone, including political denounced having been pressured by Congressman Gudy parties, strives to control them.”125 Rivera to rule in favor of the Vice President in a case she was observing in exchange for her reelection.132 Te most recent election process was subject to these very criticisms. Various international and national Days afer her resignation, the Constitutional Court non-governmental organizations denounced serious suspended the elections because it believed the irregularities at each stage of the process. Tey said the accusations, which came from diverse sectors, to be 133 process was not transparent or rigorous and plagued serious. A month later, the court validated the election by conficts of interest, infuence peddling, insufcient of the judges. scrutiny of the candidates, and the absence of objective nominating criteria.126 International organizations, Establishing a functional, impartial, and independent including the CICIG,127 the Inter-American Commission judicial system is an essential element of democratic for Human Rights (Comisión Interamericana de governance. It has also been one of Guatemala’s greatest Derechos Humanos, CIDH), and the United Nations challenges. Te infuence that criminal organizations Special Rapporteur for the Independence of Judges and continue to exert is particularly serious and it is a central Lawyers,128 expressed similar concerns. obstacle to the construction of the rule of law. Tese processes have proven that there is still much more to Despite these criticisms, reports indicate that the be done to consolidate the progress made in the justice members of the Supreme Court were allegedly elected system and underscores the need for the CICIG to remain as a result of a power-sharing agreement struck between in the country. the Patriot (Patriota, PP) and Renewed Democratic Liberty (Libertad Democrática Renovada, Líder) political parties,129 and that the agreement further led to the THE UN, THE PROMOTION OF THE October 1 election of members to appellate courts. RULE OF LAW, AND THE CICIG EXPERIENCE Te concerns were so serious that, in a gesture without Promoting the rule of law is one of the United precedent, a member who gained reelection to one of Nations’ principal areas of work.134 While there is no the nation’s highest courts resigned over the corruption internationally agreed upon defnition of the concept, UN and irregularities she believed occurred during the Secretary General, Ban Ki-moon, described the rule of 22 The International Commission against Impunity in Guatemala

law as: international criminal tribunals for Rwanda and former Yugoslavia, the tribunals for Sierra Leone, Cambodia, [a] principle of governance in which all persons, and Libya, and various investigative commissions. institutions and entities, public and private, including Among these, the CICIG is an unprecedented, UN- the State itself, are accountable to laws that are publicly sponsored, hybrid mechanism that has a broad mandate promulgated, equally enforced and independently for investigating organized crime and its ties to state adjudicated, and which are consistent with international institutions. human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of As a hybrid mechanism, the CICIG is an international supremacy of law, equality before the law, accountability apparatus that helps strengthen and assist Guatemalan to the law, fairness in the application of the law, institutions in investigating and dismantling criminal separation of powers, participation in decision-making, networks. Its goal is to complement, and not temporarily legal certainty, avoidance of arbitrariness and procedural replace, national security and justice institutions. Te and legal transparency. Commission’s experience represents a new method of In addition to the activities and programs on the rule strengthening the rule of law. It allows the international of law that UN missions and agendas around the world community to work hand in hand with local institutions carry out, the organization supports various rule of while at the same time enjoy a certain level of law mechanisms. Tese mechanisms take diferent independence and authority to promote changes in their forms, such as the International Court of Justice, the performance.

LA LÍNEA SCANDAL

On April 16, 2015, the CICIG and the Guatemalan G

Public Prosecutor’s Ofce uncovered a massive CICI corruption network within Guatemala’s tax collection agency, the Superintendency of Tax Administration SOURCE: (Superintendencia de Administración Tributaria, SAT). The network, dubbed “The Line” (La Línea), allegedly involved ofcials in the highest levels of government, including the current and former head of the SAT, and Vice President Roxana Baldetti’s personal secretary, Juan Carlos Monzón, who is said to have led the tax- fraud ring.

CICIG commissioner Iván Velásquez explained that the network, which made millions of dollars of tax fraud From left to right: Vice President Roxana Baldetti’s personal at customs posts, reportedly operated out of three SECRETARY*UAN#ARLOS-ONZØN2OJAS FORMERHEADOFTHE3!4 Carlos Enrique Muñoz Roldán, current head of the SAT Álvaro 135 ports, Quetzal, Central, and Santo Tomás. Businesses /MAR&RANCO#HACØN4HEGRAPHICABOVEEXPLAINSHOWLa Línea that imported goods to those ports could call a phone operates: First, the shipping container arrives at the port for in- number (La Línea) to negotiate a deal: the importer spection. If the importer has a relationship with the network, the would pay 40 percent of standard import taxes to customs surveyors flag the container and call La Línea to alert the state, deliver 30 percent to the tax fraud ring, and them. The importer declares the value of the container, pays the reduced import tax, and delivers the bribe to the network. The 136 keep the remaining 30 percent. In this way, La Línea contents of the container are then free to enter the country, but defrauded the government 60 percent—an estimated THESTATELOSESPERCENTOFDUETAXREVENUEONTHEIMPORT $120 million (940 million Quetzales)—of due tax revenue from the containers that entered under the illicit agreement.137 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 23

Over the course of eight months, the Special Anti- scheme, on May 6 the Guatemalan Supreme Court Impunity Prosecutor’s Bureau (Fiscalía Especial contra unanimously ruled that Congress could revoke her la Impunidad, FECI), the CICIG, and the Ministry of the political immunity to allow for her investigation. After Interior monitored over 66,000 phone calls and 6,000 losing an appeal to overturn the ruling, Baldetti stepped emails between the members of the tax-fraud ring.138 down as vice president. President Molina made the The evidence they found implicated at least 24 people announcement in a historic press conference on May 8, in the scheme, including customs surveyors, middle to stating that her resignation was a “personal decision.” 145 high-ranking members of the tax collection agency, and others outside the agency.139 The current superintendent Further investigations into the tax-fraud scheme led to of the SAT, Álvaro Omar Franco Chacón, and the former arrest on May 8 of three lawyers for allegedly running superintendent, Carlos Enrique Muñoz Roldán, were a “Law Firm of Impunity” (Bufete de Impunidad), which both implicated in the scandal, although according to connected clients to judges who were willing to rule in the CICIG, the evidence suggests that it was Monzón their favor.146 In the case of the tax-fraud scandal, the who supposedly gave the commands.140 Monzón judge implicated was Marta Josefina Sierra González reportedly also played a role in ensuring that Franco de Stalling, sister-in-law of Blanca Aída Stalling Dávila, succeeded Muñoz as head of the SAT after Muñoz President of the Criminal Chamber of the Supreme failed to meet the tax collection quota in 2014.141 Court (Corte Suprema de Justicia, CSJ).

The network’s alleged second in command was On April 21, Judge Marta Sierra de Stalling sentenced Salvador Estuardo González Álvarez, president of a 16 of the 22 tax-fraud defendants to pretrial detention news corporation that owns Guatemalan newspapers in prison, while the other six defendants, including key Siglo 21 and AlDía.142 Other prominent members of La players Francisco Javier Ortiz Arriaga and Salvador Línea purportedly included Luis Alberto Mendizábal Estuardo González Álvarez, were given house arrest and Barrutía, who filmed and distributed the video of a reduced bail.147 Judge Sierra de Stalling did not ofer Rodrigo Rosenberg in 2009 (see p.19), and Francisco an explanation for why she considered the situation of Javier Ortiz Arriaga, alias “Lieutenant Jerez.” Ortiz is a these six defendants to be any diferent from the rest of former member of the Moreno network, an illicit crime the group. ring composed of military and government ofcials that carried out similar tax fraud and smuggling activities in According to phone intercepts from the CICIG the 1990s.143 investigation, Mendizábal Barrutía had contacted one of the lawyers of the bufete. The lawyers allegedly On April 13, three days before the CICIG went public arranged for three of the defendants—Salvador Estuardo with the investigation, Monzón left the country to González Álvarez, Francisco Javier Ortíz Arriaga, and accompany Vice President Baldetti on a trip to South Miguel Ángel Lemus—to pay of the judge in exchange Korea. According to reports, this was the first time for a reduced sentence.148 Monzón had traveled internationally with the Vice President.144 When news of the scandal broke, Monzón The CICIG and the FECI filed an appeal against Judge was nowhere to be found. Baldetti claimed that her Marta Sierra de Stalling, but the judge cannot be secretary had left hours before the news reached her investigated unless the Supreme Court decides to strip and had not seen him since. her of judicial immunity.149 The phone intercepts also mentioned Sierra de Stalling’s sister-in-law, Blanca Aída Revelations of the scandal within the Pérez Molina Stalling Dávila, although the Supreme Court magistrate administration sparked widespread protests and denies any connection to the case. Several judges and thousands of Guatemalans poured into the streets of magistrates recently called for Blanca Stalling to resign, the nation’s capital to demand the resignation of Vice but no formal appeals have been filed against her.150 President Baldetti and President Pérez Molina. Although She recently requested a one-month, unpaid leave of Baldetti denied any connection to the corruption absence. 24 The International Commission against Impunity in Guatemala

As a hybrid mechanism, the CICIG model allows for the Guatemala to determine the legislative changes needed analysis of international cooperation on the rule of law for the efective implementation of the Commission’s aimed at creating national will and capabilities where mandate. Tis could have allowed the United Nations they do not exist. An examination of the Commission to determine whether or not it is necessary to include can reveal whether it is possible to establish a functioning specifc obligations in the agreement for the collaboration collaboration between the international community and of Guatemalan institutions. authorities of a particular state that allows the former to train and provide the latter with needed equipment and As a hybrid mechanism operating within Guatemala’s legal instruments. It presents an opportunity to determine legal framework, the instruments at its disposal for whether the international community can help local exercising its mandate were those included in Guatemalan authorities eliminate political obstacles that obstruct legislation. Te CICIG experience underscores the actions aimed at protecting fundamental citizen rights. need to consider, during the process of creating such a mechanism, the inclusion of indicators of political will, Te nearly eight years that the CICIG has been operating such as legislative reforms. in Guatemala allows for the identifcation of some lessons learned from this innovative experience to combat Institutional Establishment, Prior to the Start of organized crime rooted in state institutions. Tese lessons Operations should be considered for the creation of future rule of law During its frst four months of existence, the CICIG mechanisms in countries that are in similar situations. operated with a limited number of volunteers and basic resources. Te recently appointed commissioner, Lessons Learned from the CICIG Experience contracted as a consultant during the frst three months, Creating and Establishing the Mechanism was responsible for setting up the Commission’s search for Need for Prior Analysis a team of experts. Prior to the creation of the CICIG, two missions from the UN Department of Political Afairs visited Guatemala. Te frst few months of the CICIG’s work underscored Te frst, in 2003, studied the possible creation of the the advantages of establishing, whenever possible, a CICIACS. Te second, in 2006, analyzed conditions for preliminary period for the preparation of an international the creation of what would become the CICIG.151 On mechanism aimed at strengthening the rule of law. these visits, the missions sought opinions from various Tis would allow time to attend to administrative and representative sectors of society and government, management issues, such as recruiting and hiring including the executive branch, Congress, the justice personnel, before the ofcial work begins. system, the Constitutional Court, the Human Rights Ombudsman, the National Civilian Police, the Army, It is important to note that the agreement to create political parties, unions, private sector organizations, the CICIG was signed at the end of UN Secretary media, human rights group representatives, indigenous General Kof Annan’s term and Guatemalan President organizations, and of course, the diplomatic community Oscar Berger’s administration. Given these impending in the country. transitions, the Commission was implemented quickly.

Te United Nations found itself faced with an innovative UN Cooperation and Support and unprecedented proposal. In retrospect, there are Te CICIG’s experience highlights the importance of preliminary measures that, had they been taken, could having a department or agency within the UN that serves have strengthened the CICIG’s work from the very start. as a focal point for operational cooperation and direct To play it safe, the Commission mandate was set for contact with all of the UN-backed security and justice two years with an option for renewal, but such a limited mechanisms. Such an entity could help fll gaps and time period was not sufcient for the investigation and provide real-time support. Tis operational unit could be dismantling of complex criminal networks, thus creating mandated to coordinate and administer all UN-sponsored uncertainty for the future of the CICIG from the very justice and security mechanisms, monitor progress, make start. In addition, it would have been benefcial to conduct recommendations, and provide pertinent material and a more thorough analysis of the current legal system in best practices. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 25

In 2012, the Secretary General of the United Nations created a system to strengthen the organization’s work on rule of law. Under this new system, the on-the- ground UN ofcials of the highest level are responsible for guiding and supervising rule of law strategies and coordinating with local agencies. At the headquarters level, the United Nations Development Program (UNDP) and Department of Peacekeeping Operations (DPKO) were appointed as the “Global Focal Point for Police, Justice and Corrections Areas in the Rule of Law in Post- confict and other Crisis Situations.” In this capacity, UNDP and DPKO support on-the-ground missions with regards to personnel, knowledge, fnance, and technical and operational advice. At the strategic level, the Rule of Law Coordination and Resource Group assumes the leadership role for all work on the rule of law. 152 Tis new system, especially the Global Focal Point, can help future The initiative to create the CICIG is approved by the Guatemalan Congress on mechanisms address some of the issues that arose at the !UGUST  start of the CICIG’s mandate. At the same time, despite the challenges that this status Non-UN Agency vs. UN Body has created, it has given the CICIG more independence, During the fnal phase of negotiations between the which is essential for an international investigation body UN and the Guatemalan government, both parties that functions as an international prosecutor. Its status agreed that the CICIG would not be established as a has endowed it with important levels of confdentiality, UN body. Tis designation generated certain challenges fexibility, and freedom to maneuver. For instance, under regarding the Commission’s relationship with the UN, its standard operating procedures, the Commission has the contracting of personnel, the protections provided to been able to provide security to people outside the UN such personnel, and on an operational level. Nonetheless, system, including victims. its status enabled it to have a greater degree of operational independence and fexibility, which, given its investigative To balance the benefts of having a UN vs. non-UN status, functions, has been essential to the implementation of its some experts have suggested that mechanisms similar mandate. to the CICIG should be established as non-UN entities, but they recommend that they sign an accord similar to When it comes to personnel, the CICIG’s status as a non- the one that exists between the UN and the International UN entity means that its personnel are not integrated with Criminal Court.154 Tis kind of agreement would allow the UN system and thus not entitled to the UN-system’s the mechanism to maintain its level of independence and pension funds and other benefts and rights. Tis has also receive the protection and support of the UN system made it more difcult for the Commission to hire frst- that is important for the efective implementation of its rate UN professionals who would like to remain within mandate. the UN system to preserve their professional benefts. Various experts who could have been candidates for the Security CICIG positions have long UN-system trajectories. Before the creation of the CICIG, the UN had never participated directly in investigating organized crime. Te Tis status has also given rise to difculties in acquiring Commission has raised a series of important security- security equipment and has generated delays in obtaining related issues that should be considered in the design of judicial assistance from other states, including for the any similar future mechanisms. At the same time, it has relocation of protected witnesses to other countries. 153 highlighted the importance of having a certain degree 26 The International Commission against Impunity in Guatemala

of fexibility, and of considering the adoption of new been co-opted by interest groups. Such government norms and procedures to address new and emerging institutions do not engender a sense of trust in its citizens. security threats. From a security perspective, the most important lesson learned from the CICIG experience is Te ultimate aim thus becomes creating capacity and the need for such a mechanism to be able to carry out political will where it does not exist. Yet, before being functions that are uncommon within the UN system, able to efectively work with the domestic counterpart, such as the protection of witnesses, mechanisms to a mechanism would have to consider various issues, ensure confdentiality, and the implementation of special including: a) the selection of personnel with a history of protocols on the use of force, among others. periodic evaluations of their reliability and assessments of their standard of living to eliminate candidates whose Another issue to consider is the security of personnel, profle does not correspond with their job or income; b) particularly domestic CICIG personnel who face a the need to reconcile the technical assistance procedures signifcant risk of physical or judicial retaliation for needed for the appropriate training of selected personnel; their work that does not end with the completion of the c) the provision of protection to these public servants, Commission’s mandate. While international personnel including their families, if necessary; and d) the provision can return to their home countries at the end of the of essential legal instruments, technical equipment, and mandate, the majority of the domestic personnel will services so the selected personnel can perform their jobs remain in Guatemala without the judicial or physical successfully and lawfully. protection of the Commission. Tis not only makes it difcult to hire local lawyers and investigators, it also has Proposing Legislative Reforms a signifcant efect on the lives of domestic personnel once One of the CICIG’s exclusive powers is ability to propose the mandate is fnished. legislative and policy reforms. Tis has enabled it to support eforts to build investigative and criminal Local Capacity Building prosecution capabilities within the state. As mentioned Establishing a Trained Counterpart above, the Commission is a hybrid mechanism operating Any mission to strengthen the rule of law should be based within Guatemala’s legal framework whose efectiveness on the assumption that when a state signs an agreement and ability to complete its mandate depends on the with the UN, an international or regional organization, instruments made available to it. It is extremely difcult or another country to strengthen its security and justice to defne the goals and timeframes for the approval of systems, it does so because the state is unable to respond legal reforms, as the process is subject to the legislative to an overwhelming criminal phenomenon. Tis is dynamic within the country. Tese challenges should be usually because of institutional weakness or political taken into account when determining the role of an entity instability that afects the state’s ability to govern, or in like the CICIG in legislative reforms. It is imperative many cases, a confuence of both. As a result, the state that the mechanism has the necessary tools to efectively cannot confront the problem on its own, as it lacks the combat criminal networks. A government that does not technical capacity and ofen the political conditions, such respond to proposed reforms indicates a lack of political as a legislative majority or political consensus, to do so. commitment to confront criminal networks.

In many cases, international missions will be working Te Need for a Communications Strategy with a state counterpart with weak professional Te CICIG’s experience emphasizes the need for any expertise, organizational shortcomings, and poor future mechanism aimed at strengthening the rule of technical equipment and legal systems that fail to meet law to have a professionally designed and implemented international standards for successful organized crime communications strategy. A solid communications investigations. In countries with a strong presence of strategy will help keep the public informed, allowing organized crime, endemic corruption, and high levels it to raise public awareness. Publicizing emblematic of social and political conficts, state justice and security investigation cases will help educate the citizenry about institutions are ofen infltrated by these criminal the complexity of criminal networks and the impact they organizations, or a large number of public ofcials have have on democratic institutions and everyday life. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 27

Evaluation, Impact, and Results goals are long term, many of its achievements will be Measuring Results visible only afer its mandate expires. As a result, the It is extremely difcult to measure the results and impact sustainability of its eforts is of utmost importance. of the CICIG or any other similar mechanism. Because of the nature of the mandate of many international mechanisms, including the Commission’s, to strengthen CONCLUSIONS the rule of law, the number of convictions obtained is Te International Commission against Impunity in not a clear indicator of success. While one can consider Guatemala (Comisión Internacional contra la Impunidad tangible results like the number of investigated cases, en Guatemala, CICIG) is a unique model of cooperation laws passed, or corrupt ofcials removed from ofce, for the strengthening of the rule of law. It was created qualitative and political indicators should also be used to by an agreement between the Guatemalan government measure the impact of hybrid international mechanisms and the United Nations in 2006. Its mission is to support on the justice system. Tese intangible factors could Guatemalan institutions in investigating, prosecuting, include an increased awareness in the population of and eventually dismantling the networks of criminality the problem of impunity and its impact on society or and corruption that continue to operate in the country. the existence of a renewed public demand for justice. Tese networks have sought to embed themselves in the Guatemalan society’s confdence in the possibility of security and justice systems to control them and avoid combating impunity and achieving justice speaks volumes being investigated or prosecuted for their crimes. Te to the impact of the Commission on the country. Commission also seeks to strengthen the justice system and has an unprecedented mandate to do so. Because of its hybrid nature, the results of a mechanism like the CICIG also depend on the will, commitment, In contrast to other mechanisms of international and cooperation of the national counterparts to combat cooperation for strengthening the rule of law, the CICIG criminal networks with strength and determination. operates within Guatemala’s justice system. As such, it has the ability to conduct investigations, while working Sustainability of Progress hand in hand with Guatemalan institutions. In this way, Te results and achievements of the CICIG or of similar the Commission achieves lasting and substantial changes bodies are not of great value if institutional progress through its direct efort to strengthen state institutions. cannot be sustained afer the mechanism’s mandate ends. In an attempt to achieve sustainability, state institutions While its trajectory has not been entirely smooth, the should be made up of well-trained public ofcials who are CICIG has achieved transcendental results. When committed to combating impunity, dismantling criminal the Commission began its work in Guatemala, illegal groups, and adopting the measures needed to safeguard organizations and clandestine entities had been due process and impede the resurgence of criminal infltrating and co-opting state institutions for more groups. Te need to develop a strategy to identify and than twenty years. Trough its actions, the subsequent train committed public ofcials who will become part mobilization of civil society, and the facilitation of of the leadership team in the future justice and security political consensus, the CICIG won the approval of system should be considered from the inception of important legislative reforms; secured new investigative mechanisms like the CICIG. tools, principally for the Public Prosecutor’s Ofce; and removed public ofcials who were compromised by or Te receiving country’s government should also display a colluding with criminal organizations. frm commitment to maintain the progress that has been made. Tis means that the country should substantially Te successes of the collaboration between the CICIG, strengthen the ability of the Public Prosecutor’s Ofce the Public Prosecutor’s Ofce, and the international and the justice system during the commission’s mandate. community are undeniable.155 Te arrest of former At the same time, it means adopting and implementing President Alfonso Portillo, the conviction of two of his the necessary instruments to protect justice and security biggest collaborators, and other convictions related to institutions from being co-opted by criminal networks extrajudicial killings carried out by high-level ofcials of dedicated to guaranteeing impunity. Because the CICIG’s Oscar Berger’s administration would not have been possible 28 The International Commission against Impunity in Guatemala

without the presence and collaboration of the Commission. have been impossible to take action against Judge Erick Without the CICIG, it is unlikely that the justice system Gustavo Santiago de León, who is accused of belonging to would have been able strike such a blow to the network of a corruption ring within the judicial system;156 Judge Jisela corruption within the prison system, or, more recently, to Reinoso for possible crimes of money laundering and illicit the tax fraud ring that implicated high-level ofcials as well enrichment;157 or against the ruling party representative as corrupt judges and lawyers who helped them. It would Gudy Rivera for possible infuence peddling.

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On November 20, 2014, in an operation (“Cancebero”) IBRE

coordinated by the CICIG, the Special Anti-Impunity L Prosecutor’s Bureau, and the Ministry of Interior, ten alleged members of a criminal organization controlled by Haroldo Mendoza Matta were arrested.158 The OTO: PRENSA PRENSA OTO:

suspects were tied to the November 15 massacre of H P seven people in the department of Izabal.159 The arrests, carried out simultaneously in the departments of Petén, Izabal, Suchitepéquez, and Guatemala, were a big blow to one of the oldest and most powerful criminal organizations in the country.160

According to the CICIG’s investigation, the Mendoza The CICIG and Guatemalan security forces capture Haroldo Mendoza Matta. family was able to form a private army that “patrolled, controlled access routes, and guarded borders in Petén and Izabal and committed crimes there, including and power of the Mendoza family was so great that murder, burning harvests, the theft and killing of ex-President Álvaro Colom said the Mendozas were livestock, raiding homes, massacres, disappearances, “untouchable drug trafckers.”165 and land usurpation.”161 The family is rumored to have exerted absolute control over the department of Izabal. After the arrest of Haroldo Mendoza, CICIG Commissioner Iván Velásquez Gómez said that the Reports by international organizations and research organization tried to infiltrate the state and establish centers maintain that the Mendoza family has been relationships with local authorities. He also said operating in Guatemala since the 1980s.162 Over the Haroldo Mendoza commanded a “parallel power to years, they have acquired vast quantities of land in the state” that operated like a private army.166 This was the Petén and have constructed a business empire confirmed with the discovery of a large quantity of that includes haciendas (large estates), construction high-power firearms and ammunition at the site of his companies, hotels, restaurants, gas stations, arrest.167 transportation companies, and agricultural product distributors, among other businesses. In a decade, these By December 2014, nine of those detained were still companies earned, according to the daily newspaper being held in jail and had been included in a criminal ElPeriodico, 74.6 million Quetzals (US$9.8 million) in case,168 while the tenth detainee was on parole. Among municipal government contracts.163 the evidence collected during months of investigations were ballistic reports, technical reports, and intercepted The Mendoza family benefitted from political alliances telephone calls. While the case’s outcome will not be with local authorities and political circles in Guatemala. known for many months, the CICIG and the Public Media reports suggest that the Mendoza family Prosecutor’s Ofce investigation represents a blow to a financed the congressional campaign of the mayor of criminal group that had vast political influence for many Petén after he spent $2 million dollars to build a soccer years. stadium for a team the family owned.164 The reach 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 29

Its contribution to resolving the Rodrigo Rosenberg are not only inefcient but also have high levels of co- case helped calm the political crisis the video unleashed optation and internal corruption. and allowed President Álvaro Colom to fnish his constitutional mandate. Tis is, without a doubt, one of Finally, the Guatemalan government should demonstrate the CICIG’s biggest accomplishments. its frm commitment to guaranteeing the independence and impartiality of the judicial system and the Public Te level of cooperation required between the CICIG Prosecutor’s Ofce. Te ultimate success or failure of the and Guatemalan authorities, particularly the Public CICIG depends upon these institutions as they determine Prosecutor’s Ofce, is a challenge, but it is also its greatest which cases go to trial, under what conditions, and with strength and is an essential condition for the sustainability which outcomes. Te Commission must operate in an of its achievements. Because it would be very difcult for environment where the rule of law exists, and Guatemala the Commission to achieve its goals without the dedicated is responsible for creating such an environment. collaboration of the Guatemalan authorities, it could be said that this is its Achilles’ heel. 169 Te above analysis of the CICIG and its general conclusions can be applied to other international Te biggest challenge is and will continue to be the cooperation initiatives promoting the rule of law. Tey defnitive transfer of responsibility and abilities from can also be applied to regional and bilateral cooperative this international entity to national institutions; agreements on security and justice in countries with ensuring that they assume the right and responsibility to similar situations to Guatemala, such as El Salvador, guarantee efcient justice and the sustainability of these Honduras, and many other countries. achievements over the long term. Beyond Guatemala, the CICIG is, or should be, a model Te experience of the CICIG has clearly demonstrated mechanism to strengthen the rule of law of UN member that progress is possible with political will and countries. It can always be improved upon and should independent leadership. During the tenures of Amílcar be adapted to the characteristics of each country and Velásquez and Claudia Paz y Paz as Attorney Generals, situation. Its level of integration with the local justice substantial progress was made. Yet, events that occurred system and its focus on promoting the prosecution of afer these lef ofce demonstrate the vulnerability of this criminal cases and tools to strengthen the capacities of progress. As was expected, illicit networks sought to react institutions make it an innovative model that is worthy and adapt, and the duration of the Commission’s mandate of consideration for other countries in similar situations. hasn’t been long enough to consolidate this progress In the Central American context, governability problems, and steel the justice and security institutions from the defciencies in security and justice systems, and high rates infuence and cooptation of these illicit entities. Te of violence in Honduras and El Salvador, underscore challenges seen during the election of the Supreme Court how helpful it would be to establish similar mechanisms and appellate court magistrates in 2014 also demonstrate in these two countries. In a global context, Trinidad and that these criminal networks and parallel powers maintain Tobago, Burundi, and the Philippines have expressed their the ability to act and exert their infuence.170 Te recent interest to the United Nations in establishing CICIG-like setbacks should serve as a warning of the consequences of mechanisms in their countries.171 a premature exit of the CICIG. Te United Nations maintains operations and programs It should be a priority to press forward with the judicial for strengthening the rule of law in more than 150 reforms the CICIG suggested, given that these will have countries, in which some 40 UN agencies are involved. It a transcendental infuence on the sustainability of the has 18 missions for strengthening the rule of law around Commission’s eforts and the ability of Guatemala to fght the world. Te Rule of Law Coordination and Support criminal entities. Group, which assumed a leadership role in 2012, presides together with the United Nations Development Program Moreover, the nature of the cases the CICIG has (UNDP) and Department of Peacekeeping Operations investigated demonstrates that it is essential to reform the (DPKO) over all the programs, agencies, and missions. National Civilian Police and penitentiary system, which Tey provide support to missions on the ground “in 30 The International Commission against Impunity in Guatemala

terms of personnel, knowledge, fnance, and technical and ̈ It is imperative that the government make progress operational advice.” Te executive ofce of the Secretary on the legislative reforms the CICIG proposed in General also has a Rule of Law Unit. order to provide the country with the instruments and legal framework it needs to confront new methods In the future, Te Rule of Law Coordination and Resource of criminality. Te targets of these proposed reforms Group, along with DPKO and UNDP, which form include, among others, laws and policies governing the Focal Point for Justice, Security and Corrections, legal protection, banking secrets, and nominating could play a crucial role in providing coordination and committees, as well as the increase in penalties for operational support for missions. Tey could provide crimes committed by ofcials and public employees help in planning, creating, negotiating implementing, and their disqualifcation from holding public ofce. and executing the mechanism. Tey could also provide support when the agreement ends, including the transfer For Central America: of skills to the domestic counterpart and establishing an ̈ Te security situation in Honduras and El Salvador orderly exit strategy. Te Rule of Law Coordination and is as serious as Guatemala’s. Te crime rates in the Resource Group can help unify criteria and practices Northern Triangle of Central America are the highest for all missions on the ground, centrally supervise in the world. It is a clear humanitarian emergency that the implementation of all the mandates, and assume threatens regional peace. Te states’ guarantee of the responsibility for their efective execution, providing fundamental rights of its citizens is practically non- logistical and political support, supervising the fulfllment existent. El Salvador and Honduras should give serious of counterpart obligations, and reporting to donor states. consideration to establishing a CICIG-like mechanism. Due to the transnational nature of some of these RECOMENDATIONS groups, any future CICIG-like bodies established in For Guatemala: the sub-region should coordinate their activities to ̈ Te government of Guatemala should facilitate the ensure a fuid exchange of information. conditions for the efective fulflment of the CICIG’s mandate. Tere is a long way to go to dismantle the For the International Community: criminal organizations that infuence, and in some ̈ Te CICIG could serve as a model (with adjustments cases control, a signifcant part of the national territory made to suit each particular context) for other and its democratic institutions. Te continued criminal countries in similar situations. International activities in Guatemala call for the active presence mechanisms to strengthen the rule of law in weak of the international community in the country. states that are unable to efectively protect their citizens Te recent extension of the Commission’s mandate should be guided by the principals of complementarity represents an important opportunity to strengthen the and joint responsibility for guaranteeing fundamental rule of law in the country, and to advance the adoption human rights. and implementation of important pending reforms. ̈ Future experiences should consider the merits of a ̈ It is fundamental that the Guatemalan government hybrid model, guided by the idea of a partnership is able to guarantee the independence of its justice between the international community, which provides system, which is an essential obligation implicit in the help, and the state, which receives it. It should seek to agreement. Te existence of the CICIG and the efort develop a sense of ownership in local institutions. It invested by the UN and the international community should also have a mandate that includes the capacity in its creation and maintenance will be meaningless and technical means to carry out investigations and if Guatemala cannot guarantee that independent and criminal persecutions; the application of criminal impartial institutions—exclusively subject to the rule and administrative actions; and the ability to propose of law—will continue to resolve the criminal cases legislative changes and to provide technical assistance the Commission has initiated. Currently, this sine and training. qua non condition for cooperation is not guaranteed, and the Guatemalan government needs to reafrm its ̈ Te adoption of a model of this nature should consider commitment to do so. the context and specifc needs of the country in 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 31

question. Tis requires ensuring that the mechanism ̈ Te Commission’s status as a non-UN organ has has a sufcient amount of time to efectively combat created certain limitations in terms of benefts and organized crime. Te instrument should analyze the access to resources and personnel. At the same particular context to determine the type of cooperation time, this status has allowed it a certain level of needed, the security conditions necessary, the current independence. For future experiences of this kind, legislative framework in the country, and any changes it is important to consider ways to create a stronger to the local legislation that might be required to ensure relationship between the mechanism and the an efective implementation of the mandate. multilateral system that created it. Tis relationship could be formed by integrating the mechanism ̈ Te CICIG’s experience has shown that a mechanism into the multilateral system, or by establishing a of this kind should include, to the extent possible, a complementary relationship agreement that provides period prior to the commencement of the mandate for a framework of cooperation between the mechanism the purposes of preparation, fnancing, recruitment, and system. Whatever the integration formula, the and hiring. Tis would help guarantee that the security of the personnel, the counterparts, and administrative, logistical, personnel, and security witnesses during and afer the end of the mandate needs have been met prior to the starting date. must be taken into consideration.

̈ Te CICIG’s experience has demonstrated how ̈ Future experiences should consider the benefts important it is to be able to negotiate cooperation of establishing, in a balanced and specifc manner, agreements with third countries to investigate the obligations of both parties to the agreement. transnational crimes and cross-border issues. In particular, they can consider the inclusion of indicators or benchmarks to evaluate progress and ̈ Te CICIG’s experience has shown how important it commitments; multilateral mechanisms for monitoring is to have a communications strategy and relationship the implementation and resolution of any conficts with the media, civil society, the private sector, and that arise; and procedures for the consultation and political parties, among others. Tis helps raise public participation of information sharing with donor states. awareness about the impact of organized crime on At the same time, future experiences could consider people’s everyday lives and on democratic institutions. defning the circumstances in which the cooperation agreement can be terminated. 32 The International Commission against Impunity in Guatemala

Endnotes 1 United Nations Offce on Drugs and Crime, Global Study on 12 Comprehensive Agreement on Human Rights, Te Guatemalan Homicide, 2014, http://www.unodc.org/documents/gsh/pdfs/2014_ Government and the Unidad Revolucionaria Nacional Guatemalte- GLOBAL_HOMICIDE_BOOK_web.pdf. ca, March 29, 1994, http://www.usip.org/sites/default/fles/fle/ resources/collections/peace_agreements/guat_hr_940329.pdf. 2 It is the most violent region on Earth. Guatemala went from 2,904 homicides and a rate of 25.9 homicides per 100,000 inhabitants in 13 Edgar Gutiérrez, “Las redes que capturan el Estado," Fundación 2000, to 6,025 homicides with a rate of 39.9 in 2012. El Salvador Derechos Económicos, Sociales y Culturales, 2010. went from 2,341 homicides and a rate of 39.3 in 2000, to 2,594 homicides and a rate of 41.2 in 2012 (in 2011, before a cease fre 14 Te confict has transformed, but not disappeared. Despite being a agreement was signed with youth gangs known as maras, the number country in a time of peace, the violence in Guatemala and the of homicides was 4,371 with a rate of 69.9).Without doubt, the worst number of violent deaths continues to grow. Today the murder rate case is Honduras: it went from 3,176 homicides and a rate of 50.9 en is no diferent, and in some cases higher, than it was during the 2000, to 7,172 and a rate of 90.4 in 2012. See the UNODC 2014 armed confict. Political violence has been exchanged for the report on homicides : http://www.unodc.org/documents/gsh/ violence of organized crime. pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf. 15 Tese illegal armed groups, inside and outside of government 3 Steven Dudley, “Zetas In Guatemala,” InSight Crime, September institutions, have continued to operate during all of the democrati- 2011, http://www.insightcrime.org/investigations/the-zetas-in-guate- cally elected administrations since the peace accord was signed, mala. including Presidents Álvaro Arzu (1996-2000), Alfonso Portillo (2000-2004), Oscar Berger (2004-2008), Álvaro Colom (2008-2012), 4 Susan C. Peacock and Adriana Beltrán, Hidden Powers in Post and Otto Pérez Molina (2012-2016). Confict Guatemala: Illegal Armed Groups and the Forces Behind Tem, Washington Offce on Latin America, http://www.wola.org/ 16 Amnesty International, Guatemala’s Lethal Legacy: Past Impunity sites/default/fles/downloadable/Citizen%20Security/past/ and Renewed Human Rights Violations, https://www.amnesty.org/en/ Hidden%20Powers%20Long%20Version.pdf. documents/AMR34/001/2002/en/.

5 A complementary prosecutor is the equivalent of a civil action in 17 Ibid. other civil legal systems in which a third party, often a victim of a 18 La Asociación de Investigación y Estudios Sociales (ASIES) a la crime, can participate in criminal proceedings and demand damages opinión pública hace saber, January 20, 2015. for the crime. (A. Hudson and A. W. Taylor, “The International Commission against Impunity in Guatemala: A New Model for 19 Movimiento ProJusticia, “Pautas para la renovación del mandato de International Criminal Justice Mechanisms,” Journal of International la Comisión internacional contra la impunidad en Guatemala,” Justice, Vol. 8 (2010), p.53–74. Cited in: Julia Schünemann, Looking February 2015, http://www.myrnamack.org.gt/index.php/ the Monster in the Face, Fundación para las Relaciones Internaciona- analisis/492-pautas-para-la-renovacion-del-mandato-de-la- les y el Diálogo Exterior, October 2010, http://fride.org/download/ comision-internacional-contra-la-impunidad-en-guatemala-mo- OP_Guatemala_IFP_SPA_nov10.pdf. vimiento-pro-justicia. 6 Report available at: http://www.wola.org/sites/default/fles/ 20 Luis Jorge Garay Salamanca and Eduardo Salcedo-Albaran, downloadable/Citizen%20Security/past/Hidden%20Powers%20 Narcotrafco, corrupcion y Estados: Cómo las redes ilicitas han Long%20Version.pdf. reconfgurado las instituciones en Colombia, Guatemala y México, (Mexico City: Random House Mondadori, 2012). 7 “Agreement Between The United Nations and the Government of Guatemala for the Establishment of a Commission for the 21 Informe del Grupo Conjunto para la investigación de grupos armados Investigation of Illegal Groups and Clandestine Security Organiza- ilegales con motivación política en El Salvador, June 28, 1994, http:// tions in Guatemala (‘CICIACS’),” January 7, 2004, http://www. www.uca.edu.sv/publica/idhuca/grupo.html. un.org/News/dh/guatemala/ciciacs-eng.pdf. 22 Adriana Beltrán, Te Captive State: Organized Crime and Human 8 Constitutional Court, Guatemala, Opinión Consultiva, Expediente Rights in Latin America, Washington Ofce on Latin America, No. 1250-2004, August 2004. October, 2007, http://www.wola.org/publications/the_captive_state_ organized_crime_and_human_rights_in_latin_america. 9 For a summary of the advocacy process for the creation of the international commission see: Washington Offce on Latin America, 23 “Cicig desarticula red de corrupción,” Prensa Libre, September 4, Advocates Against Impunity: A Case Study on Human Rights Organiz- 2014, http://www.prensalibre.com/noticias/justicia/edgar_camargo- ing in Guatemala, December 2008, http://www.wola.org/sites/ sistema_penitenciario-captura-cicig-mixco_0_1205279500.html. default/fles/downloadable/Citizen%20Security/past/cicig_advo- cates_against_impunity.pdf. 24 Mirte Postema, “CICIG Investigation Could Be a Game-Changer for Guatemala,” published in “Americas Quarterly” (blog), September 9, 10 Agreement between the United Nations and the State of Guatemala 2014, http://americasquarterly.org/content/cicig-investigation- on the Establishment of an International Commission against could-be-game-changer-guatemala. Impunity in (CICIG), The United Nations and the Government of Guatemala, August 1, 2007, http://www.cicig.org/uploads/ 25 Byron Disrael Lima Estrada’s sentence was reduced to 20 years and documents/mandato/cicig_acuerdo_en.pdf. he was freed in July, 2012 afer his sentence was further reduced for good behavior. 11 Te UN-sponsored Commission for Historical Clarifcation attributed 93 percent of the human rights violations during the 26 Sergeant José Obdulio Villanueva was decapitated in February 2003 armed confict to the state and illegal security groups and 3 percent in a prison riot. Te other members of the military convicted for the to the guerrilla groups. For more information see: Commission for murder of Bishop Gerardi and other human rights abuses were also Historical Clarifcation, Guatemala, Memory of Silence, February 26, serving time at the same prison. His death occurred several months 1999, https://www.documentcloud.org/documents/357870-guate- afer the murder Noé Gómez Limón, an important witness in the mala-memory-of-silence-the-commission-for.html. Gerardi case. Gómez Limón was the tenth witness in the Gerardi case to be murdered. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 33

27 Juan Manuel Castillo Zamora, “Juan José Gerardi: 15 años después 48 Agreement between the United Nations and the State of Guatemala de su asesinato,” Prensa Libre, April 14, 2013, http://www. on the Establishment of an International Commission against prensalibre.com/noticias/justicia/GERARDI_0_901109898.html. Impunity in Guatemala (CICIG), Te United Nations and the Government of Guatemala, August 1, 2007, http://www.cicig.org/ 28 Evelyn Boche, “¿Es Torre Fuerte una auténtica cooperativa?,” El uploads/documents/mandato/cicig_acuerdo_en.pdf. Periódico, September 2014, http://www.elperiodico.com.gt/ es/20140910/pais/1662/%C2%BFEs-Torre-Fuerte-una- 49 Ofcial statistics from the Public Prosecutor’s Ofce and the aut%C3%A9ntica-cooperativa.htm. Judiciary. 29 Sofía Menchú, “Nadie puede contra Byron Lima,” Contrapoder, Sep- 50 Ibid. tember 3, 2014, http://contrapoder.newscoop.pro/es/168/ actualidad/1581/Nadie-puede-contra-Byron-Lima.htm?tpl=52. 51 Penal Code, Decree 51 from 1992, Article 116. “Complementary Prosecutor. In criminal cases, a civil victim, or his or her representative 30 Rodrigo Baires Quezada, “El largo paseo del capitán Lima Oliva,” in case of incapacitation, may initiate a criminal prosecution or join Plaza Pública, February 18, 2013, http://www.plazapublica.com.gt/ one initiated by the Public Prosecutor’s Ofce. Tis right can be content/el-largo-paseo-del-capitan-lima-oliva. exercised by any citizen or association of citizens against government ofcials who have directly violated human rights while carrying out 31 Sofía Menchú and Juan Luis Font, “Un Lima furioso arremete contra the functions of their ofce or who have abused their authority.” As a López Bonilla,” Contrapoder, September 5, 2014, http://www. complementary prosecutor, the CICIG can collaborate with the contrapoder.com.gt/es/168/actualidad/1585/Un-Lima-furioso- Public Prosecutor’s Ofce and help investigate, request proceedings, arremete-contra-L%C3%B3pez-Bonilla.htm. and participate directly in the criminal trials. 32 Sofía Menchú, “Nadie puede contra Byron Lima.” 52 Te Commission has the power to fle complaints against public 33 Rodrigo Baires Quezada, “Un gancho al hígado para Byron Lima ofcials, particularly in regards to those who have acted to obstruct Oliva,” Plaza Pública, September 4, 2014, http://www.plazapublica. the fulfllment of the CICIG’s mandate. It can also act as an com.gt/content/un-gancho-al-higado-para-byron-lima-oliva. interested third party in disciplinary hearings against these ofcials. 34 “Desarticulan red que involucra a Edgar Camargo y Byron Lima 53 Te proposals, recommendations, and thematic and annual reports Oliva,” CICIG, September 3, 2014, http://www.cicig.org/index.php? the CICIG releases can be accessed on its website: www.cicig.org. mact=News,cntnt01,detail,0&cntnt01articleid=559&cntnt01return 54 See: http://www.cicig.org/index.php?page=sobre. id=67. 55 Impunity Watch, International Center for Transitional Justice, Plata- 35 Sonia Perez, “Excapitán Byron Lima creó imperio desde la prisión,” forma Holandesa contra la Impunidad, Cambiar la cultura de El Periódico, September 3, 2014, http://www.elperiodico.com.gt/ la violencia por la cultura de la vida: los primeros dos años de es/20140903/pais/1343/Excapit%C3%A1n-Byron-Lima- la Comisión Internacional contra la impunidad en Guatemala, Au- cre%C3%B3-imperio-desde-la-prisi%C3%B3n.htm. gust 2010, http://dataspace.princeton.edu/jspui/bitstream/88435/ 36 Rodrigo Baires Quezada, “Un gancho al hígado para Byron Lima dsp017s75dc41q/1/Cambiar%20la%20cultura.pdf. Oliva.” 56 “Convenio de cooperación bilateral entre el Ministerio Público y la 37 Informe de la Comisión Internacional Contra la Impunidad en Comisión Internacional Contra la Impunidad en Guatema- Guatemala con ocasión de su séptimo año de labores, CICIG, 2014, la – CICIG,” February 27, 2008, http://www.cicig.org/uploads/ http://cms.fdeck.com/userfles/onu.org.gt/marilis.quinones/fle/ documents/convenios/mp-cicig.pdf. Publicaciones%20/CICIG/Informe%20CICIG.pdf. 57 Tis includes passing a lie detector test. 38 See photos on Byron Lima’s website: http://byronlimapresidente. 58 Memoria de labores: Ministerio Público año 2009, Ministerio Público com/index.html. de Guatemala, 2009, http://www.mp.gob.gt/wp-content/up- 39 Rodrigo Baires Quezada, “Guatemala desafía por fn a su pre- loads/2012/06/Memoria-de-Labores-2009.pdf. so más poderoso,” El Faro, September 8, 2014, http://www.elfaro.net/ 59 Javier Figueroa was acquitted by an Austrian court in 2013. es/201409/internacionales/15913/Guatemala-desaf%C3%ADa-por- fn-a-su-preso-m%C3%A1s-poderoso.htm. 60 Alejandro Giammattei was acquitted in July 2012. 40 Sofía Menchú and Juan Luis Font, “Un Lima furioso arremete contra 61 Byron Rolando Vásquez, “Ordenan captura de Giammattei, López Bonilla.” Vielmann, Sperisen y Figueroa,” Siglo 21, August 9, 2010, http://m. s21.com.gt/nacionales/2010/08/09/ordenan-captura-de-giammattei- 41 Sofía Menchú, “Presidios: la agencia de empleo de Byron Lima,” vielmann-sperisen-fgueroa. Contrapoder, December 26, 2014, http://contrapoder.newscoop.pro/ es/179/actualidad/1807/Presidios-la-agencia-de-empleo-de-Byron- 62 CICIG, “Spanish prosecutor requests that Carlos Vielmann be Lima.htm. prosecuted for death of inmates,” June 20, 2013, http://www.cicig. org/index.php?page=0014-20130620E. 42 Rodrigo Baires, “Guatemala desafía por fn a su preso más poderoso.” 63 Manuel Altozano y Jesús Duva, “Detenido en Madrid un ex ministro de Guatemala acusado de estar implicado en varios asesinatos,” El 43 Sonia Perez, “Excapitán Byron Lima creó imperio desde la prisión.” país, October 13, 2010, http://elpais.com/elpais/2010/10/13/ 44 Ibid. actualidad/1286957836_850215.html. 45 Luis Jorge Garay Salamanca and Eduardo Salcedo-Albarán, 64 CICIG, Sixth Report on the Activities of the International Commission Narcotráfco, corrupción y Estados: Cómo las redes ilícitas han against Impunity in Guatemala (CICIG), August 2013, http://www. reconfgurado las instituciones en Colombia, Guatemala y México, cicig.org/uploads/documents/2013/COM-045-20130822-DOC01- Random House Mandadori, 2012. EN.pdf. 46 Ibid. 65 Procurador de los Derechos Humanos, “Caso Pavón,” December 26, 2006, http://www.plazapublica.com.gt/sites/default/fles/resolucion_ 47 Ibid. pdh_caso_pavon.pdf. 34 The International Commission against Impunity in Guatemala

66 CICIG, “Court Sentences Perpetrators of Extrajudicial Killings,” 82 Inter-institutional Agreement between CICIG and the Public CICIG, August 8, 2013, http://www.cicig.org/index.php?mact=News Prosecutor’s Ofce for Strengthening the Witness Protection ,cntnt01,detail,0&cntnt01articleid=421&cntnt01showall=&cntnt01r Program, October 31, 2008. eturnid=844. 83 Law for Strengthening Criminal Prosecution (Ley del Fortalecimien- 67 Ibid. to de la Persecución Penal), Decreto No. 17 de 2009, http://www.oj. gob.gt/es/QueEsOJ/EstructuraOJ/UnidadesAdministrativas/ 68 Ibid. CentroAnalisisDocumentacionJudicial/cds/CDs%20leyes/2009/ 69 José Davíd López, “Caso Pavón: Cámara activa condena contra decretos.htm. exjefe policíal,” El Periódico, January 4, 2015, http://www.elperiodico. 84 CICIG, One Year Later, August 2008, http://www.cicig.org/uploads/ com.gt/es/20150124/pais/7539/Caso-Pav%C3%B3n- documents/informes/INFOR-LABO_DOC01_20080901_EN.pdf. C%C3%A1mara--activa-condena-contra-exjefe-policial.htm. 85 For more information see: Hidden Powers in Post Confict 70 Carlos Mejía, “Se cierra la persecución penal contra Giammattei,” Guatemala: Illegal Armed Groups and the Forces Behind Tem, Siglo 21, August 31, 2012, http://m.s21.com.gt/node/270623. Washington Ofce on Latin America. 71 “Exjefe PNC absuelto en tribunal Austria,” La Prensa Gráfca, 86 Colonels Jacobo Salán Sánchez y Napoleón Rojas Méndez were October 11, 2013, http://www.laprensagrafca.com/2013/10/11/ Portillo’s close advisors. Both participated in the Alfredo Moreno exjefe-pnc-absuelto-en-tribunal-austria. Molino’s contraband ring. WOLA’s report, Hidden Powers, describes 72 “Tribunal de Suiza sentencia a Erwin Sperisen a cadena perpetua how they came to exercise such a vast infuence on Portillo’s por caso Pavón,” Ministerio Público de Guatemala, June 6, 2014, government. For more information see: Hidden Powers in Post https://www.mp.gob.gt/2014/06/06/tribunal-de-suiza-sentencia-a- Confict Guatemala: Illegal Armed Groups and the Forces Behind erwin-sperisen-a-cadena-perpetua-por-caso-pavon/. Tem. 73 “Exministro Vielman será juzgado en España por asesinato de 10 87 “Alfonso Portillo Case,” CICIG, http://www.cicig.org/index. presos,” La Noticia en Guatemala, March 26, 2014, http:// php?page=7102-2001E. lanoticiaenguatemala.com/exministro-de-guatemala-sera-juzgado- 88 Among the alleged corruption cases to which he is tied are the en-espana-por-asesinato-de-10-presos/. million dollar transfers of public funds to foreign accounts, a case 74 According to the CICIG, 30 police ofcers received 348 hours of known as “Te Panama Connection.” He has also been tied to a 52 training in criminology and investigation methods. Tey began a million dollar thef of funds from Guatemalan Social Security, second phase of feld training that lasted an academic year. Tese among other crimes. “Alfonso Portillo, el primer presidente de ofcials were distributed throughout the MP (to work on Guatemala, juzgado en EU,” CNN Mexico, May 28, 2013, http:// investigations, provide police support and security of prosecutors), mexico.cnn.com/mundo/2011/11/17/alfonso-portillo-el-primer- at CICIG headquarters (to provide security), and in the police expresidente-de-guatemala-juzgado-en-eu. investigative units. Tey provided logistical support, security, 89 “Fiscal: Portillo ‘no es prófugo,’” BBC, February 23, 2014, http:// coordination, acted as a police liaison, and supported international news.bbc.co.uk/hi/spanish/latin_america/newsid_3512000/3512253. investigators in their work. stm. 75 Impunity Watch, Centro Internacional para la Justicia Transicio- 90 “Alfonso Portillo Case,” CICIG, http://www.cicig.org/index. nal, Plataforma Holandesa contra la Impunidad, Cambiar la php?page=7102-2001E. cultura de la violencia por la cultura de la vida: los primer- os dos años de la Comisión Internacional contra la impunidad en 91 Michael Lohmuller, “Guatemala Ex-President Pleads Guilty to Guatemala. Corruption, Money Laundering,” InSight Crime, March 19, 2014, http://www.insightcrime.org/news-briefs/guatemala-ex-president- 76 For more information see: http://www.cicig.org/index. pleads-guilty-to-corruption-money-laundering. php?page=institutional-reform. 92 Byron Rolando Vásquez, “Esposo de jueza tiene relación con 77 Te “amparo” is a defense instrument created to protect individuals Guerra,” Siglo 21, May 12, 2011, http://m.s21.com.gt/node/38375. from the threats to their rights or to restore those rights when a violation has occurred. Tis legal fgure has been abused and used to 93 CICIG, Sixth Report on the Activities of the International Commission ensure impunity. against Impunity in Guatemala, http://www.cicig.org/uploads/ documents/2013/COM-045-20130822-DOC01-EN.pdf. 78 Tis situation got worse with the advent of cellular phones and the installation of antennas and networks across the country, which 94 “Manhattan U.S. Attorney Announces Extradition of Former enabled a broader range of coverage and ease of communication President of Guatemala, Alfonso Portillo, On Money Laundering from anywhere. Te ability to acquire a phone and phone plan Charge,” Te United States Attorney’s Ofce: Southern District of without identifying the owners or users of these phones also made New York, May 28, 2013, http://www.justice.gov/usao/nys/ the situation worse. Tese changes increased communication pressreleases/May13/PortilloAlfonsoExtraditionPR.php. between people but also facilitated the use of cell phones for criminal purposes. 95 During the Alfonso Portillo administration the government of Taiwan gave US$2.5 million to the government of Guatemala for the 79 Law Against Organized Crime (Ley Contra la Delincuencia “Libraries for Peace” program. According to investigations, the Organizada), Decreto 21 de 2006, modifcada por los Decretos 17 y money was diverted to the Ministry of Defense, laundered through 23 de 2009. American and European banks, and later deposited into Portillo’s relatives’ bank accounts. Te former president maintained in court 80 Ley Contra la Delincuencia Organizada, Capitulo1: Operaciones that the money was given to him in exchange for diplomatic encubiertas, Articulo 21 y siguientes. recognition of Taiwan. See: “Manhattan U.S. Attorney Announces 81 Decreto Nº 21-2006, y el Acuerdo Nº 2-2007 of the Public Extradition of Former President of Guatemala, Alfonso Portillo, on Prosecutor’s Ofce concerning the identity changes and relocation of Money Laundering Charge.” witnesses and collaborators in criminal proceedings. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 35

96 “Former President of Guatemala Alfonso Portillo Sentenced in 115 Impunity Watch, International Center for Transitional Justice, Plata- Manhattan Federal Court for Laundering Millions of Dollars forma Holandesa contra la Impunidad, Cambiar la cultura de Trough United States Banks,” Te United States Attorney’s Ofce: la violencia por la cultura de la vida: los primeros dos años de Southern District of New York, May 22, 2014, http://www.fi.gov/ la Comisión Internacional contra la impunidad en Guatemala and newyork/press-releases/2014/former-president-of-guatemala-alfon- Julia Schünemann, Looking the Monster in the Face. so-portillo-sentenced-in-manhattan-federal-court-for-laundering- millions-of-dollars-through-united-states-banks. 116 Te nomination committees were created in 2009 to depoliticize the election of judges, prosecutors, comptrollers, and other justice 97 “Militares retirados son condenados a 5 años de cárcel,” Emisoras system workers. Te committees’ purpose is to present candidates Unidas, July 5, 2014, http://noticias.emisorasunidas.com/noticias/ for high-level positions to the President or Congress. Te nacionales/militares-retirados-son-condenados-5-anos-carcel. committees are made up of ofcials from public and private universities, representatives of professional organizations, and other 98 “Sala resuelve enviar a juicio a ocho militares por desfalco en el groups. Prior to their formation, justice system elections were the ministerio de la defensa,” CICIG, March 2, 2015, http://www.cicig. responsibility of the President or Congress, which raised concerns org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=583& that they were based on political loyalties and not professional merit. cntnt01returnid=67. For more information see: Jorge Dardon and Christian Calderon, 99 Annual reports and correspondence with author. Cited in: Tove “Case Study on the Network of Lopez Villatoro, the ‘king of tennis Nyberg, Smoking the Rats Out: CICIG’s efort to strengthen the justice shoes,’” in Illicit Networks and Politics in Latin America, Netherlands system in Guatemala, Universirty of Stolkhom, 2014. Institute for Multiparty Democracy and Clingendael, 2014, http:// www.idea.int/publications/illicit-networks-and-politics-in-latin- 100 Especially Efraín Ríos Montt of the FRG and Álvaro Arzú Irigoyen america/upload/illicit_networks_americas_intro.pdf. of PU. 117 Lisseth E. Montenegro, Informe Final de Monitoreo: Aplicación Ley 101 For example, university students wrote letters to deans and rectors de Comisiones de Postulación, Elección de Fiscal General de la who were members of the nominating committees to request República y Jefe del Ministerio Público, Movimiento ProJusticia, 2010, transparency and integrity in the selection of candidates for judges. http://www.movimientoprojusticia.org.gt/fles/PDF/Informe%20 Final%20de%20Monitoreo-Proceso%20I%20Fiscal%20Gener- 102 See: Kitroef y Schünemann, op. cit. in both cases. al-2010.pdf. 103 “Reaching the untouchables,” Te Economist, March 11, 2002, http:// 118 Julia Schünemann, Looking the Monster in the Face. www.economist.com/node/15663302. 119 Julia Schünemann, Looking the Monster in the Face and Movimiento 104 Informe Alternativo de organizaciones de la sociedad civil de ProJusticia, Informe Final de Monitoreo: Aplicación Ley de Guatemala sobre el cumplimiento del mandato de la CICIG,” March Comisiones de Postulación, Elección de Fiscal General de la República 23, 2015, http://www.cicig.org/uploads/img/2015/others/ y Jefe del Ministerio Público. NOT_020_20150323_InfAlternativo.pdf. 120 José Luis Sanz, “El fn de la primavera de Claudia Paz,” El Faro, 105 Julia Schünemann, Looking the Monster in the Face. August 10, 2014, http://www.salanegra.elfaro.net/es/201407/ 106 Miguel Ángel Lombardo Chico, La fragmentación del Estado: origen cronicas/15754/. y persistencia de la violencia en Guatemala, Tesis Doctoral, Facultad 121 José Luis Sanz, “Guatemala: Te Fall of Paz y Paz, the End of a de Ciencias Políticas, Universidad Complutense de Madrid, España, Judicial Awakening,” Insight Crime, August 15, 2014, http://www. 2012. insightcrime.org/news-analysis/paz-y-paz-end-guatemala-judicial- 107 See: Steven Dudley, “Te War for Guatemala’s Courts: How Political, awakening. Corporate and Criminal Interests Seek to Infuence Guatemala’s 122 Steven Dudley, “Justice and the Creation of a Mafa State in Justice System,” InSight Crime, September 2014, http://www. Guatemala,” InSight Crime, September 18, 2014, http://www. insightcrime.org/investigations/the-war-for-guatemala-s-courts. insightcrime.org/investigations/justice-and-the-creation-of-a-mafa- 108 “Video Revelador,” Prensa Libre, May 12, 2009, http://www. state-in-guatemala? prensalibre.com/noticias/video-revelador_0_41397358.html. 123 Julia Schünemann, Looking the Monster in the Face. 109 Ibid. 124 Ibid. 110 Ezra Fieser, “Arrestan a supuestos asesinos de abogado que denunció 125 Ivan Briscoe and Marlies Stappers, “Breaking the Wave: Critical a Colom por video,” El Nuevo Herald, September 25, 2009, http:// Steps in the Fight against Crime in Guatemala,” Clingendael Institute www.elnuevoherald.com/noticias/mundo/america-latina/ and Impunity Watch, January 2012, http://www.clingendael.nl/sites/ article1999401.html. default/fles/20120100_briscoe_breaking.pdf. 111 CICIG, “Conferencia de prensa caso abogado Rodrigo Rosenberg 126 Centro por la Justicia y el Derecho Internacional, Fundación para el Marzano,” January 12, 2010, http://www.cicig.org/index. Debido Proceso, Ofcina en Washington para Asuntos Latinoameri- php?page=conferencia-prensa-caso-Rosenberg. canos, et. al., “Organizaciones internacionales señalan que procesos 112 “Conferencia de prensa caso abogado Rodrigo Rosenberg Marzano,” de selección judicial en Guatemala no respetaron estándares CICIG, January 12, 2010, http://www.cicig.org/index. internacionales,” October 7, 2014, http://cejil.org/comunicados/ php?page=conferencia-prensa-caso-Rosenberg. organizaciones-internacionales-senalan-que-procesos-de-seleccion- judicial-en-guatemala-n. 113 Ibid. 127 Hugo Alvarado, “Cicig pide detener elección de magistrados,” Prensa 114 See: Luis Jorge Garay Salamanca and Eduardo Salcedo-Albarán, Libre, September 17, 2014, http://admintest.prensalibre.com/ Narcotráfco, corrupción y Estados: Cómo las redes ilícitas han noticias/justicia/trabajo-Comisiones-Postulacion-esta-viciado- reconfgurado las instituciones en Colombia, Guatemala y México, afrma-Cicig_0_1213078845.html. Random House Mandadori, 2012. 36 The International Commission against Impunity in Guatemala

128 See: “Experta de la ONU exhorta a Guatemala a repetir selección de 140 Ibid. magistrados de forma transparente,” October 2014, Ofcina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos 141 Bill Barreto, ‘“La Línea’: una red de corrupción y una crisis política.” en Guatemala, http://www.ohchr.org.gt/noticia.asp?idnoticia=166 142 González Álvarez is the son of former Guatemalan Defense Minister and “CIDH reitera su preocupación por procesos de selección y Marco Antonio Gonzalez Taracena. nombramiento de magistrados y magistradas para Corte de Apelaciones y Corte Suprema de Justicia en Guatemala,” Comisión 143 For more information on this network, see WOLA’s “Hidden Powers Interamericana de Derechos Humanos, September 27, 2014, http:// in Post-Confict Guatemala.” www.oas.org/es/cidh/prensa/comunicados/2014/108.asp. 144 David Gagne, “How the Scandal that Rocked Guatemala Treatens 129 Oswaldo J. Hernández, “PP y Lider: fe ciega para repartirse the Presidency,” InSight Crime, April 30, 2015, http://www. magistrados,” Plaza Pública, September 26, 2014, http://www. insightcrime.org/news-analysis/tracing-guatemala-customs-scandal- plazapublica.com.gt/content/pp-y-lider-fe-ciega-para-repartirse- to-the-presidency. magistrados and Jessica Gramajo and Hugo Alvarado, “Alianza Partido Patriota y Líder eligen cortes de Apelaciones,” Prensa Libre, 145 Gabriela Lehnhof, “Renuncia a su cargo vicepresidenta Roxana October 1, 2014, http://admintest.prensalibre.com/postuladora_ Baldetti,” Contrapoder, May 8, 2015, http://contrapoder.com. sala_de_apelaciones/Nacionales-alianza-PP-y-Lider-eligen-cortes- gt/2015/05/08/renuncia-a-su-cargo-vicepresidenta-roxana-baldetti/. postuladora-Salas-Apelaciones-congreso_0_1222077785.html. 146 “Antejuicio contra Jueza Marta Sierra de Stalling y estructura 130 M. España, M. Diéguez, R. Mendoza y R. Pérez Crónica, “¡BRAVO! criminal de bufete de impunidad,” CICIG, May 8, 2015, http://www. UNA ACTITUD EJEMPLAR Magistrada renuncia por vicios en cicig.org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid= postulación…,” Crónica, October 8, 2014, https://www.cronica.com. 592&cntnt01returnid=67. gt/portada-cronica/magistrada-renuncia-por-vicios-en-postulacion- 147 Ibid. bravo-una-actitud-ejemplar_9af7cd/. 148 Ibid. 131 Elías Rodríguez, “Magistrada de Apelaciones reelecta renuncia por vicios en el proceso,” El Periódico, October 6, 2014, http://www. 149 “AP: Escuchas en caso “La Línea” mencionan a magistrada Stalling,” elperiodico.com.gt/es/20141006/pais/2892/Magistrada-de-Apelacio- La Hora, May 10, 2015, http://lahora.gt/ap-escuchas-en-caso-la- nes-reelecta-renuncia-por-vicios-en-el-proceso.htm. linea-mencionan-magistrada-stalling/. 132 Escobar presented to the International Commission against 150 A. Rojas and J. Suncar, “Magistrados y jueces piden la renuncia de Impunity in Guatemala (CICIG) a recording of a conversation that Blanca Stalling,” Prensa Libre, May 27, 2015, http://www.prensalibre. allegedly provides evidence of infuence trafcking. In March 2015, com/guatemala/justicia/magistrados-y-jueces-piden-la-renuncia-de- the CICIG asked the Constitutional Court to strip Rivera of his blanca-stalling. immunity afer the Supreme Court rejected its pre-trial request against the congressman. “Solicitan antejuicio contra diputado Gudy 151 Te negotiation took place between the Vice-President and Rivera Estrada,” CICIG, October 17, 2014, http://www.cicig.org/ COPREDEH (Presidential Commission for Human Rights) for the index.php?mact=News,cntnt01,detail,0&cntnt01articleid=565&cntn Guatemalan government and the Department of Political Afairs t01returnid=1146. (DPA) and the Ofce of Legal Afairs (OLA) for the UN. 133 AP, “Guatemala: Corte Constitucional suspende elección de 152 Report of the Secretary General of the Security Council, Measuring magistrados,” Fox News Latino, October 9, 2014, http://latino. the efectiveness of the support provided by the United Nations system foxnews.com/latino/espanol/2014/10/09/guatemala-corte-constitu- for the promotion of the rule of law in confict and post-confict cional-suspende-eleccion-de-magistrados/. situationas, S/2013/341 (June 11, 2013). 134 “Te United Nations and the Rule of Law,” Te United Nations, 153 Due to its non-UN status, the CICIG does not have direct access to http://www.un.org/es/ruleofaw/. the UN procurement system or the database of contracts. Tis has caused some difculties in the purchase of security items such as 135 “Duro golpe contra la corrupción en sistema aduanero,” Ministerio weapons, armored cars, ammunition, electronic surveillance Público, April 16, 2015, https://www.mp.gob.gt/2015/04/16/ equipment, and other specialized equipment. mp-da-golpe-a-corrupcion-en-sistema-aduanero/. 154 Te International Criminal Court is a Non-UN organ. 136 Bill Barreto, “’La Línea’: una red de corrupción y una crisis política,” Plaza Pública, April 19, 2015, http://www.plazapublica.com.gt/ 155 As an example, the Cofradia, a type of fraternity within the army content/la-linea-una-red-de-corrupcion-y-una-crisis-politica. made up of active and retired army intelligence ofcers, is said to have transformed into a criminal network and a powerful political, 137 Lorena Álvarez, “Finanzas considera préstamo de hasta US$70 institutional, professional, and media lobby. Despite having millones para la SAT,” El Periódico, April 23, 2015, http://www. protected General Ríos Montt, Ríos Sosa, Arévalo Lacs and the ex- elperiodico.com.gt/es/20150423/pais/11582/Finanzas-considera- President Alfonso Portillo Cabrera, they couldn’t prevent the pr%C3%A9stamo-de-hasta-US$70-millones-para-la-SAT.htm. extradition, prosecution, and conviction of Portillo in the U.S. and the confscation of the money he had deposited in Europe. At the 138 “Duro golpe contra la corrupción en sistema aduanero.” same time, they couldn’t exert infuence in favor of two important 139 For a list of those implicated in the scandal, see: “Desmantelan red members who were convicted in Guatemala either: Napoleón Rojas de defraudación aduanera,” CICIG, April 16, 2014, http://www.cicig. y Jacobo Salán Sánchez. Tis case illustrates the cooperation org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=587& between the CICIG, the Public Prosecutors’ Ofce, and the cntnt01showall=&cntnt01returnid=1377 and Julio Lara and Hugo international community, which resulted in criminal prosecution in Alvarado, “Suman 24 detenidos por caso La Línea,” Prensa Libre, a U.S. court. For more information on the Cofradia, see: Susan C. http://www.prensalibre.com/guatemala/justicia/suman-24-deteni- Peacock and Adriana Beltrán, Hidden Powers in Post Confict dos-por-caso-la-linea. Guatemala: Illegal Armed Groups and the Forces Behind Tem. 4(%7!3().'4/./&&)#%/.,!4).!-%2)#!s*5.% 37

156 In October 2014, the CICIG, the National Civilian Police, and the 163 Edgar Gutiérrez, “El emporio de Los Mendoza Matta,” El Periódico, Public Prosecutor’s Ofce captured lawyer Samuel Enrique Alvarado December 27, 2014, http://www.elperiodico.com.gt/es/20141227/ López and a Eliot Imeri Díaz, for their alleged participation in a pais/6610/El-emporio-de-Los-Mendoza-Matta.htm. corruption ring in the judiciary. According to their investigations, the judge, with the help of Alvarado López and Díaz, negotiated the 164 Luis Ángel Sas, “El rey Tesucún,” Plaza Pública, June 7, 2011, http:// payment of a 10 million Quetzals (US$1.3 million) commission in www.plazapublica.com.gt/content/el-rey-tesucun. exchange for a ruling in favor of a company that had been ordered to 165 Pablo Ordaz, “Los narcos nos están invadiendo,” El País, May 24, pay 93 million Quetzals (US$12.2 million) in a civil suit. For the 2011, http://elpais.com/diario/2011/05/24/internacio- same crime, they presented a criminal pretrial request against Erik nal/1306188007_850215.html. Gustavo Santiago de León, a civil judge in the Tird Appeals Court. In February 2015, the Supreme Court stripped Santiago de León of 166 “Capturan a presunto narco Haroldo Mendoza,” Prensa Libre, his immunity so he could be investigated. For more information see: November 20, 2014, http://www.prensalibre.com/noticias/justicia/ http://www.cicig.org/index.php?mact=News,cntnt01,detail,0&cntnt0 Capturan_a_presunto_narco_Haroldo_Mendoza_0_1252074881. 1articleid=564&cntnt01returnid=67. html. 157 In February 2015, the CICIG and the Public Prosecutor’s Ofce 167 “Ligan a proceso a otros cuatro integrantes de estructura criminal de presented a pretrial request to strip immunity from Judge Jisela Mendoza Matta,” CICIG. Yadel Reinoso Trujillo so she could be investigated for illicit enrichment. For more information see: http://www.cicig.org/index. 168 “Tres supuestos integrantes de grupo armado van a prisión,” Prensa php?mact=News,cntnt01,detail,0&cntnt01articleid=580&cntnt01ret Libre, December 2, 2014, http://www.prensalibre.com/noticias/ urnid=67. justicia/ligados-proceso_penal-banda_criminal-morales_iza- bal_0_1259274246.html. 158 “MP coordina capturas de 10 personas,” Ministerio Público de Guatemala, November 20, 2014, https://www.mp.gob.gt/2014/11/20/ 169 Julia Schünemann, Looking the Monster in the Face. mp-coordina-capturas-de-10-personas/. 170 C. Quintela y J. López, “Magistrada de Apelaciones reelecta renuncia 159 Tulio Juárez, “Nueve capturados por masacre de siete personas en por vicios en el proceso,” El Periódico, October 6, 2014, http://www. Valle Nuevo, Izabal,” El Periódico, November 20, 2014, http://www. elperiodico.com.gt/es/20141006/pais/2892/Magistrada-de-Apelacio- elperiodico.com.gt/es/20141120/pais/5130/Nueve-capturados-por- nes-reelecta-renuncia-por-vicios-en-el-proceso.htm. masacre-de-siete-personas-en-Valle-Nuevo-Izabal.htm. 171 In April 2010, there was a meeting at the United Nations in New 160 International Crisis Group, Guatemala: Narcotráfco y violencia, York called by the Guatemalan mission to the UN in which the October 11, 2011, http://www.crisisgroup.org/~/media/fles/ CICIG and representatives of diverse sectors of Guatemalan civil latin-america/39%20guatemala%20-%20drug%20trafcking%20 society explained to the international community the Commission’s and%20violence%20spanish.pdf. purpose and achievements. Representatives from more than 90 member states, from every continent, attended the event. Te same 161 “Ligan a proceso a otros cuatro integrantes de estructura criminal de month, the CICIG model was presented at the UN headquarters in Mendoza Matta,” CICIG, December 2, 2014, http://www.cicig.org/ Vienna, in an event sponsored by the UN Ofce on Drugs and index.php?mact=News,cntnt01,detail,0&cntnt01articleid=576&cntn Crime (UNODC) and the World Bank. Soon aferwards, the UN t01returnid=1347. received expressions of interest from 12 countries in setting up similar mechanisms. 162 For more information see: InSightCrime, “Te Mendozas,” http:// www.insightcrime.org/guatemala-organized-crime-news/ los-mendoza?; International Crisis Group, Guatemala: Drug Trafck- ing and Violence; and the United Nations Ofce on Drugs and Crime, Transnational Organized Crime in Central America and the Caribbean: A Treat Assessment.

COVER PHOTOS FROM LEFT TO RIGHT: (top) La Prensa Grafca, Diario La Hora - Guatemala, Plaza Pública; (middle) El Periódico, Diario La Hora - Guatemala, Diario La Hora - Guatemala; (bottom ) El Periódico, Diario de Centro America, Prensa Libre. !!!! !!!! !"/547/,! WOLA is a leading research and advocacy organization advancing human rights in the Americas. We envision a future where public policies in the Americas protect human rights, recognize human dignity, and where justice overcomes violence. WOLA tackles problems that transcend borders and that require both domestic and international solutions. Through strategic collaborations, we partner with courageous individuals working on social change—advocacy organizations, academics, religious leaders, artists, business, and government officials—and together, we advocate for more just societies in the Americas.

!#+./7,%$'-%.43 This study was made possible by the generous support of the Human Security Division within the Federal Department of Foreign Affairs of the Swiss Confederation and the Moriah Fund. WOLA also appreciates the program officers and directors who contributed to this study.

!"/544(%345$9 WOLA has monitored issues of security and justice in Guatemala for decades and has studied the creation process and work of the International Commission against Impunity in Guatemala (CICIG). This report seeks to follow up on the main findings and recommendations of the 2003 WOLA publication "Hidden Powers: Illegal Armed Groups in Post-conflict Guatemala and the Forces Behind Them.” This report examines the experience of the CICIG after nearly eight years of operation in Guatemala. Based on the analysis of documents, reports, and interviews, this study examines the hybrid model of the CICIG, in which an international body of investigation and criminal prosecution works hand in hand with the domestic judicial system. The study identifies the main lessons learned from this innovative experiment to strengthen the rule of law.